A. INTRODUCTION
1. This is a first appeal which arises from the ruling of Hon. J. A. Agonda, Principal Magistrate, delivered at Vihiga on 26th September 2024, by which the learned trial Magistrate allowed a summons for revocation of grant dated 5th July 2024, revoked the grant of representation held by the Appellant, ordered the reversion of L.R. No. Kakamega/ Chamakanga/869 to the deceased, and directed that a fresh grant issue to the Respondent and to "the elder child of Nafasi Lugongo Kamasi."
2. The Appellant Samuel Vuhuru Kamasi, is a grandson of the deceased, being a son of the late Musa Kivatse Kamasi. The Respondent Rose Khavere (also styled Rose Kavere Kamasi), is a daughter-in-law of the deceased, being the widow of the late Nafasi Logongo Kamasi. She sues in a representative capacity, armed with a limited grant of letters of administration ad litem issued to her in Vihiga PM Misc. Succession Cause No. E037 of 2024 in respect of the estate of Nafasi Logongo Kamasi.
3. The appeal was canvassed by way of written submissions. The Appellant's submissions are dated 2nd February 2026 and were filed by
M. Kiveu Advocates. The Respondent's submissions are dated 25th February 2026 and were filed by Ben Aduol Nyanga & Co. Advocates. I have considered the Record of Appeal, the supplementary record containing the certified proceedings and ruling of the trial Court, and both sets of submissions, together with the authorities cited.
B. THE FACTUAL AND PROCEDURAL MATRIX
4. A first appellate Court must begin with the record. The history of this cause, drawn from the certified proceedings and the documents in the Record of Appeal, is as follows.
5. The deceased, Josiah Kamasi alias Yosia Kamasi Lugohe, of Chavogere Sub-Location, died intestate. I pause to note at once a discrepancy on the face of the record to which I shall return: the petition, the grant of 5th October 2022 and the summons for confirmation all state that the deceased died on 25th November 2007; the Respondent’s supporting affidavit asserts that he died in 1985; and the trial Court’s own order records the date of death as 25th August 1985. This is not a trivial slip in a succession cause, and it remains unresolved.
6. The deceased was survived by three children: Musa Kivatse Kamasi, Nafasi Logongo Kamasi and Agnes Anami Tito. Musa Kivatse Kamasi and Nafasi Logongo Kamasi have both since died - Nafasi on 21st October 2019. Agnes Anami Tito is, on the record before me, still living.
7. On 17th June 2009, Musa Kivatse Kamasi petitioned for letters of administration intestate in Vihiga Succession Cause No. 47 of 2009. The cause was published in the Kenya Gazette of 8th January 2010. No objection having been lodged, a grant of letters of administration intestate issued to Musa Kivatse Kamasi on 14th July 2010.
8. That grant was confirmed on 3rd May 2011. The certificate of confirmation (Form P&A 54) distributed North Maragoli/Chamakanga/869 as follows: Musa Kivatse Kamasi - 3 acres; Nafasi Logongo Kamasi - 4 acres; Agnes Anami Tito - 1 acre. Parcel 869 was thus, on the Court’s own record, treated as the asset of the estate as far back as 2011.
9. On 30th November 2016, Nafasi Logongo Kamasi took out a summons for revocation of that grant. On 28th September 2017 the application came before Hon. W. K. Cheruiyot, RM, was unopposed, and was allowed as prayed. By order issued on 3rd October 2017 the Court: (a) issued preservatory orders over L.R. No. Kakamega/Chamakanga/869; (b) revoked and annulled the grant issued to Musa Kivatse Kamasi on 14th July 2010; and (c) cancelled the transfer of parcel 869 and directed that title revert to the deceased.
10. Nothing further was done to implement that order. Nafasi Logongo Kamasi fell ill and died on 21st October 2019. Musa Kivatse Kamasi had also died.
11. On 15th March 2022, in Vihiga PM Succession Cause No. 30 of 2022 (the estate of Musa Kivatse Kamasi), the Appellant obtained a limited grant of letters of administration ad litem "substituting deceased in Vihiga PMCC Succession No. 47 of 2009."
12. Armed with that limited grant, the Appellant filed an application dated 23rd May 2022 in Succession Cause No. 47 of 2009 seeking "substitution" of the deceased Petitioner. On 6th October 2022 the application came before Hon. R. M. Ndombi, SRM. The proceedings record only Mr. Kiveu, counsel for the Applicant, as being present. The Court ruled: "Application dated 23/5/2022 is allowed. Fresh grant to be issued in the names of Applicant, Samuel Vuhuru Kamasi. Case no. closed."
13. The grant of letters of administration intestate to the Appellant bears the date 5th October 2022 - a day before the ruling authorizing it. The record offers no explanation for that anomaly.
14. The Appellant then filed a summons for confirmation dated 27th December 2022, which was placed in the registry on 16th February 2023 and fixed for hearing on 27th March 2023 with the direction that "all beneficiaries to attend." On 27th March 2023 three persons attended - the Appellant, Evans Adegu Lugongo and Agnes Anami Tito - and the grant was confirmed. The certificate of confirmation is dated 29th March
2023 and distributes Chamakanga/North Maragoli/869 as: Samuel Vuhuru Kamasi - 3 acres; Evans Adegu Lugongo - 4 acres; Agnes Anami Tito - 1 acre.
15. Two features of the confirmation proceedings are material. First, the Appellant’s affidavit in support of the summons for confirmation states, in terms, that "the estate of the deceased is comprised of: CHAMAKANGA/NORTH MARAGOLI/869" and that the heirs are Samuel Vuhuru Kamasi, Agnes Anami Tito and Evans Adegu Lugongo. Secondly, the "Consent on Distribution - General Form" in the record is unexecuted: the column reserved for the signatures of the beneficiaries is blank.
16. The Respondent was neither named as an heir or dependant, nor served, nor cited, at any stage of the proceedings that produced the grant of 5th October 2022 or its confirmation on 27th March 2023.
17. On 5th July 2024 the Respondent took out the summons for revocation of grant that gave rise to the impugned ruling, supported by her affidavit sworn on 4th July 2024. Interim preservatory orders issued on 8th July 2024. The Appellant filed a replying affidavit sworn on 16th August 2024 and filed on 19th August 2024. Directions were taken on 29th July 2024 and 20th August 2024, and the ruling was delivered on 26th September 2024.
18. By a subsequent ruling delivered on 4th February 2025, the trial Court granted a stay of execution of the ruling of 26th September 2024 pending the hearing and determination of this appeal, on condition that the Appellant deposit Kshs. 100,000/= as security. The cause was stayed accordingly.
C. THE IMPUGNED RULING
19. The learned trial Magistrate identified the issue as whether the Appellant obtained the grant fraudulently, and whether he had the right to apply for letters of administration at all. She set out section 66 of the Law of Succession Act, Rule 26 of the Probate and Administration Rules and Section 76 of the Act, and relied on Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000, and In re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR.
20. Her operative findings were, in substance, three:
a. that the Appellant had failed to obtain the consents of all beneficiaries as required by Rule 26 of the Probate and Administration Rules, the Respondent and the children of Nafasi
Logongo Kamasi never having renounced their rights;
b. that the Appellant had failed to disclose to the Court, when he moved for a fresh grant, that a grant in the same estate had already been obtained by his late father and had been revoked; and
c. that there was, accordingly, concealment of material facts within the meaning of section 76(b).
21. She made seven orders: preservatory orders against the Appellant (Order 1) and against the Land Registrar, Vihiga (Order 2); revocation of the grant and cancellation of the transfer of parcel 869 with reversion of title to the deceased (Order 3); a declaration that the grant had been obtained fraudulently and by concealment (Order 4); a direction that a fresh grant issue to Rose Kavere and to "the elder child of Nafasi Lugongo Kamasi" (Order 5); no order as to costs (Order 6); and leave to appeal within 30 days (order 7).
D. THE APPEAL AND THE RIVAL CASES
22. The memorandum of appeal dated 22nd October 2024 raises six grounds, which may be compressed as follows: that the trial Magistrate erred (i) in proceeding with the application notwithstanding the Respondent’s protestation that she had not sanctioned its filing and that her signature had been forged; (ii) in failing to find that parcel Kakamega/Chamakanga/912 did not form part of the estate; (iii) in entertaining issues arising from parcel 912 without jurisdiction; (iv) in preferring a daughter-in-law over the deceased’s surviving children and grandchildren; (v) in making findings of fact unsupported by any evidence; and (vi) in making drastic orders occasioning a miscarriage of justice.
23. For the Appellant it was submitted that where a party protests that she gave no instructions to prosecute her case, the application is a "nonstarter"; that the learned Magistrate’s decision was therefore unsupported by evidence; that preferring a daughter-in-law disregarded Section 66 of the Act; and that, on the authority of Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR and Otieno v Ougo, the Respondent lacked locus standi. Reliance was also placed on Joyce Ngima Njeru & Another v Ann Wambeti Njue [2012] eKLR for the proposition that Section 76 is a vehicle to attack the process of obtaining a grant and not the merits of a decision.
24. For the Respondent it was submitted that no formal affidavit disowning the application was ever filed by the Respondent herself; that no forensic evidence was tendered, no cross-examination sought and no complaint lodged against the firm of advocates; that the operative orders concern parcel 869 and not 912; that section 66 confers a final discretion on the Court which was exercised judiciously; and that the Section 76 threshold was amply met.
E. THE DUTY OF A FIRST APPELLATE COURT
25. Both parties correctly identified the applicable standard. On a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and to draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and must make proper allowance for that disadvantage: Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
26. That duty is, however, tempered. An appellate Court will not lightly interfere with findings of fact. In Peters v Sunday Post Limited [1958] EA 424 it was held that interference is warranted only where it is apparent that, on the evidence, no tribunal could reasonably have reached that conclusion, or where the trial Court proceeded on no evidence, or on a misapprehension of the evidence, or on wrong principles.
27. Where, as here, the decision under appeal involved the exercise of a judicial discretion - both the discretion to revoke under Section 76 and the discretion as to appointment under Section 66 - the test is stricter still. Following Mbogo & Another v Shah [1968] EA 93, this Court will interfere only if satisfied that the trial Court misdirected itself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Court was clearly wrong in the exercise of its discretion and that injustice has resulted.
28. I would add one qualification, which becomes important later in this judgment. The deference owed to a discretionary decision attaches to the exercise of a power that the Court possessed. Where a Court makes an order that it had no material or no jurisdiction to make - for instance, an order appointing Administrators where no petition for appointment was before it and the persons affected were never heard - the question is not one of discretion at all, and the appellate Court’s duty to intervene is engaged directly.
F. ISSUES FOR DETERMINATION
29. Having considered the pleadings, the record and the submissions, the issues that fall for determination are:
i. Whether the Respondent had locus standi, and whether the trial Court erred in proceeding with the application in the face of the alleged repudiation of instructions and allegation of forgery;
ii. Whether the trial Court lacked jurisdiction to entertain issues touching parcel Kakamega/Chamakanga/912, and whether it erred in not finding that parcel 912 was not part of the estate;
iii. Whether the threshold for revocation under section 76 of the Law of
Succession Act was met; iv. Whether the trial Court made findings unsupported by evidence; and v. Whether the consequential orders — and in particular order 5 — can stand.
G. ANALYSIS AND DETERMINATION
Issue (i): Locus standi, repudiation of instructions and forgery
30. I take the question of locus standi first, because if the Respondent had no standing the appeal would end there.
31. Section 76 of the Act permits revocation "either on application by any interested party or of [the Court’s] own motion." The phrase "interested party" is deliberately broad. It is not confined to a personal representative, and it plainly extends to a person whose beneficial entitlement, or whose deceased husband’s beneficial entitlement, is affected by the grant under attack.
32. The Respondent qualifies on two independent bases. First, her late husband Nafasi Logongo Kamasi was a beneficiary of this very estate, having been allotted 4 acres of parcel 869 under the confirmed grant of 3rd May 2011. His widow has an obvious and direct interest in what becomes of that entitlement. Secondly, and conclusively, the Respondent holds a limited grant of letters of administration ad litem in the estate of Nafasi Logongo Kamasi, issued in Vihiga PM Misc. Succession Cause No. E037 of 2024, expressly "for the purposes of representation, prosecuting and/or filing suit."
33. That second basis disposes of the Appellant’s own authority against him. In Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR the Court of Appeal said, in the passage the Appellant himself reproduced, that "a litigant is clothed with locus standi upon obtaining a limited grant or a full grant of letters of administration." The Respondent obtained precisely such a limited grant before moving the Court. The rule in Otieno v Ougo - that an Administrator may not sue before taking out letters - is therefore satisfied, not offended. The ground on locus standi fails.
34. I turn to the allegation of repudiated instructions and forgery, which is the Appellant’s principal ground and was pressed hardest in submissions. The submission is that where a party protests that she never instructed the advocate on record, the application is a "nonstarter" and the Court should go no further.
35. As a proposition of law, that is too broadly stated, but it contains a kernel of truth. An advocate is an Officer of the Court and there is a strong presumption that an advocate who files process does so on instructions. That presumption is rebuttable. But it is not rebutted by assertion, and certainly not by the assertion of an opposing party.
36. The difficulty for the Appellant is evidential, and it is fatal at four levels.
37. First, the allegation is one of forgery. Forgery is a species of fraud. It must be specifically pleaded, particularized, and strictly proved: Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR. The standard of proof, while not the criminal standard, is higher than the ordinary civil balance of probabilities: Kinyanjui Kamau v George Kamau [2015] eKLR. Nothing approaching that standard was attempted here. No document examiner was instructed. No specimen signatures or thumbprints were placed before the Court. No application was made under Order 19 rule 2 of the Civil Procedure Rules to cross-examine the Respondent on her affidavit — which, had the Appellant ’s theory been sound, would have been the obvious and inexpensive course. No complaint was lodged with the Law Society of Kenya or the Advocates Complaints Commission against a firm alleged to have committed forgery, uttering and making a false document. A litigant who genuinely believes that an advocate has forged his opponent’s signature does not confine his response to a paragraph in a replying affidavit.
38. Secondly, the Appellant’s own case is internally inconsistent. At paragraph 5 of his replying affidavit, he deposes that the Respondent "was categorical that she has never signed any document as she is illiterate but instead uses her thumb print like the one shown on annexed SVK-1." Yet the very document on which he relies - SVK-1, the affidavit said to have been sworn by the Respondent - is, on his own account, executed by an illiterate deponent. An affidavit by a person who cannot read the language in which it is written requires a proper jurat certifying that the contents were read over, translated and understood, in accordance with the Oaths and Statutory Declarations Act. The Appellant offers no such certificate. He cannot simultaneously contend that the Respondent’s mark on a Court document is worthless because she is illiterate, and that her mark on his annexure is conclusive.
39. Thirdly, and decisively for an appellate Court, SVK-1 is not in the Record of Appeal. I have examined the record page by page. The replying affidavit appears at pages 39 and 40; page 41 moves directly to the summons for confirmation. The annexure on which the entire first ground of appeal rests has simply not been placed before this Court. It is the Appellant who prepared and certified the record, and who bears the burden of demonstrating error. An appellate Court cannot find that a trial Court erred in its treatment of a document that the Appellant has not troubled to include. The ground is unsupported on the record.
40. Fourthly, the conduct of the Respondent is wholly inconsistent with repudiation. The firm of Ben Aduol Nyanga & Co. Advocates has been on record for the family for some time now including when it prosecuted the successful revocation application of Nafasi Logongo Kamasi. It appeared for the Respondent at every stage of the 2024 application, on 21st November 2024, on 4th February 2025, and it has filed the Respondent’s submissions in this appeal. On 29th July 2024, Counsel for the Respondent told the trial Court that his client "did not know that the grant was confirmed and she was forced to sign the documents and some of the people who visited were relatives together with strangers." That statement from the bar, made months before the ruling, offers a coherent explanation for the provenance of SVK-1 which the Appellant never answered. Even if a document had once been procured from the Respondent, her sustained conduct amounts to a clear adoption and ratification of the proceedings brought in her name.
41. The Appellant’s reliance on Joyce Ngima Njeru & another v Ann Wambeti Njue [2012] eKLR does not assist him. The passage he quotes confirms that Section 76 is "meant to be used as a vehicle to attack and fault the process of either obtaining the Grant... It is not meant to fault the decision on the merits." That is precisely what the Respondent’s application did. It attacked the process - the absence of citation, the absence of consents, the non-disclosure of the earlier revoked grant. The authority is against the Appellant, not for him.
42. Ground 1 accordingly fails.
Issue (ii): Jurisdiction and parcel Kakamega/Chamakanga/912
43. Grounds 2 and 3 may be taken together. The Appellant complains that the trial Court entertained issues arising from parcel 912 without jurisdiction, and that it failed to find that parcel 912 was not part of the estate.
44. These grounds are misconceived for a simple reason: the trial Court made no order in respect of parcel 912. Every operative order - orders 1, 2 and 3 is/are directed at L.R. No. Kakamega/Chamakanga/869. Parcel 912 features only in the narrative recital of the parties’ rival accounts of how the deceased is said to have dealt with his land during his lifetime. An appeal does not lie against a recital. Obiter observations that do not found any order cannot ground a complaint of jurisdictional excess.
45. On jurisdiction more broadly, I accept the Respondent’s submission. Section 47 of the Law of Succession Act, read with Rule 73 of the Probate and Administration Rules, confers on the succession Court jurisdiction to entertain any application and determine any dispute under the Act. That necessarily includes the power to inquire, for the purposes of Section 76, whether estate property has been concealed or misdescribed. There is a real distinction - and the trial Court respected it - between identifying what falls into an estate for probate purposes and adjudicating title under the land statutes. Only the latter is reserved to the Environment and Land Court. The trial Magistrate did not purport to determine title to parcel 912, and did not do so.
46. As to whether parcel 912 formed part of the estate: on the material before me nobody contends that it does. The Appellant’s replying affidavit asserts that 912 was purchased by his father and is not estate property. The certificate of official search for 912 shows Musa Kamasi as proprietor. The Respondent’s case is that 912 was the portion held by Musa’s house and 869 the portion held by Nafasi’s house. The point is academic to this appeal.
47. There is, however, a more serious difficulty for the Appellant here, and it is one of consistency. His memorandum of appeal and submissions press the theme that "the land in question did not form part of the estate." Yet his own affidavit sworn in support of the summons for confirmation states in terms that the estate of the deceased "is comprised of: CHAMAKANGA/NORTH MARAGOLI/869." He obtained a confirmed grant on that sworn basis, and title passed on that basis. A litigant may not approbate and reprobate. Having obtained a grant by swearing that parcel 869 was the estate asset, the Appellant cannot now resist revocation by contending the contrary. Grounds 2 and 3 fail.
Issue (iii): Whether revocation under Section 76 was justified
48. Section 76 provides that a grant, whether or not confirmed, may at any time be revoked or annulled if the Court decides - on the application of any interested party or of its own motion - that (a) the proceedings to obtain the grant were defective in substance; (b) the grant was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law, notwithstanding that the allegation was made in ignorance or inadvertently.
49. The power is discretionary and must be exercised judicially. As Mwita
J. observed in Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession
Cause No. 158 of 2000 - a decision the trial Court itself cited - the power "is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the Court to invoke Section 76." The same theme runs through Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR.
50. Applying that standard, I have re-evaluated the record for myself. In my judgment the Section 76 threshold was met, and met comfortably indeed on more grounds than the trial Court articulated.
51. Defect in substance - Section 76(a). The route by which the Appellant came to hold a grant in this estate was, with respect, unknown to probate practice. When the grant to Musa Kivatse Kamasi was revoked and annulled on 28th September 2017, the estate reverted to the position of being unadministered. The proper course was a fresh petition under Section 51, supported by the particulars that provision requires, advertised under Rule 7, and supported by the consents or citations required by Rule 26. What happened instead was an application to "substitute" a deceased petitioner in a cause that had already been terminated by revocation - a procedure borrowed from ordinary civil litigation and having no application to a petition for representation. A petition is not a suit; a personal representative is not a Plaintiff whose cause of action survives to his estate. There is no such thing as inheriting the office of Administrator.
52. The defect is compounded by the fact that the Appellant’s authority to act at all derived from a limited grant ad litem in his late father’s estate (Succession Cause No. 30 of 2022). A grant ad litem is limited by its very terms to representation in litigation. It does not confer on its holder any entitlement to petition for, still less to receive, a full grant of letters of administration in a different* estate. The Appellant used a key cut for one door to open another.
53. Nor was the application heard inter partes. The proceedings of 6th October 2022 record only Mr. Kiveu as present. No notice went to Agnes Anami Tito, the deceased’s surviving daughter; none to the Respondent; none to the children of Nafasi Logongo Kamasi. And the grant itself bears the date 5th October 2022 - a day earlier than the ruling that authorised it. Whatever the explanation for that, it is not a record of regularity.
54. Concealment of material facts - Section 76(b). Section 51(2) of the Act requires a petitioner to state, to the best of his knowledge and belief, the full and accurate particulars of the assets and liabilities of the deceased and the names and addresses of all surviving spouses, children, and other persons beneficially entitled. Rule 26(1) prohibits the grant of letters of administration to an Applicant without notice to any person entitled in the same degree or in priority; Rule 26(2) requires, in default of consent in Form 38 or 39, that the application be supported by an affidavit and such further evidence as the Court requires.
55. The Appellant complied with none of this. His affidavit in support of confirmation named three heirs and omitted the Respondent altogether. The Consent on Distribution in the record is blank in the signature column - an unexecuted form is no consent at all. And most seriously, when he moved the Court for a fresh grant, he did not disclose the single most material fact in the history of the cause: that a grant in this very estate had been issued to his own father in 2010, confirmed in 2011, and revoked and annulled by the same Court in 2017, with an order that title to parcel 869 revert to the deceased.
56. That was not a peripheral omission. Had the Court of 6th October 2022 been told that it was being asked to issue a fresh grant to the son of an Administrator whose grant it had itself revoked for irregularity five years earlier - and to do so ex parte - it is inconceivable that the application would have been allowed on the papers. The concealment was material in the fullest sense: it deprived the Court of the very information that would have caused it to act differently.
57. The observations in In re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR, relied on by the trial Court, are directly in point. Had the beneficiaries been served, they would have brought their interests to the fore and the resulting grant would have accommodated them. That is exactly what did not happen here.
58. I am therefore satisfied that the requirements of Section 76(a) and 76(b) were both established, and that the learned Magistrate’s conclusion that the grant should be revoked was not merely open to her but was, on this record, the only proper conclusion. Ground 6 - that the orders were "drastic" - must be answered by observing that revocation is the ordinary and proportionate consequence of a grant obtained in this manner. Where a grant is procured without notice to those entitled and without disclosure of a prior revocation, revocation is not drastic; it is corrective.
Issue (iv): Whether findings were made without evidence
59. Ground 5 alleges that the trial Magistrate made findings of fact unsupported by the evidence. I approach this ground with more sympathy than the others, and I do not think it can be dismissed out of hand. Candour requires that the deficiencies in the ruling be identified.
60. First, the ruling contains several factual inaccuracies. It records that the grant to Musa Kivatse Kamasi "was revoked on 14th February, 2010" - a date that cannot be right, the grant having issued on 14th July 2010 and having been revoked on 28th September 2017. It records the grant to the Appellant as having been issued "on 27th March, 2023" and elsewhere "29th March, 2023," when in truth the grant issued on 5th October 2022 and was confirmed on 27th March 2023. It gives the deceased’s date of death as 25th August 1985 in the operative order and 25th May 1985 in the recital, while the grant document says 25th November 2007.
61. Secondly, and more troublingly, the ruling contains a passage concerning "contractual interest," "the persons who sold the suit property to it," and parties who "clearly appreciated the contingencies that may affect the obligations of the parties under the contract." There was no sale contract before the trial Court. No such issue arose on the pleadings. That passage appears to have found its way into the ruling from some other matter, and it should not be there.
62. Thirdly, the ruling reasons that "the burden to disprove the Applicant’s case shifted to the Respondent" and that "the Respondent did not call any evidence." That is loose. This was an application determined on affidavit evidence; no viva voce evidence was called by either side. The Appellan
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1. This is a first appeal which arises from the ruling of Hon. J. A. Agonda, Principal Magistrate, delivered at Vihiga on 26th September 2024, by which the learned trial Magistrate allowed a summons for revocation of grant dated 5th July 2024, revoked the grant of representation held by the Appellant, ordered the reversion of L.R. No. Kakamega/ Chamakanga/869 to the deceased, and directed that a fresh grant issue to the Respondent and to "the elder child of Nafasi Lugongo Kamasi."
2. The Appellant Samuel Vuhuru Kamasi, is a grandson of the deceased, being a son of the late Musa Kivatse Kamasi. The Respondent Rose Khavere (also styled Rose Kavere Kamasi), is a daughter-in-law of the deceased, being the widow of the late Nafasi Logongo Kamasi. She sues in a representative capacity, armed with a limited grant of letters of administration ad litem issued to her in Vihiga PM Misc. Succession Cause No. E037 of 2024 in respect of the estate of Nafasi Logongo Kamasi.
3. The appeal was canvassed by way of written submissions. The Appellant's submissions are dated 2nd February 2026 and were filed by
M. Kiveu Advocates. The Respondent's submissions are dated 25th February 2026 and were filed by Ben Aduol Nyanga & Co. Advocates. I have considered the Record of Appeal, the supplementary record containing the certified proceedings and ruling of the trial Court, and both sets of submissions, together with the authorities cited.
B. THE FACTUAL AND PROCEDURAL MATRIX
4. A first appellate Court must begin with the record. The history of this cause, drawn from the certified proceedings and the documents in the Record of Appeal, is as follows.
5. The deceased, Josiah Kamasi alias Yosia Kamasi Lugohe, of Chavogere Sub-Location, died intestate. I pause to note at once a discrepancy on the face of the record to which I shall return: the petition, the grant of 5th October 2022 and the summons for confirmation all state that the deceased died on 25th November 2007; the Respondent’s supporting affidavit asserts that he died in 1985; and the trial Court’s own order records the date of death as 25th August 1985. This is not a trivial slip in a succession cause, and it remains unresolved.
6. The deceased was survived by three children: Musa Kivatse Kamasi, Nafasi Logongo Kamasi and Agnes Anami Tito. Musa Kivatse Kamasi and Nafasi Logongo Kamasi have both since died - Nafasi on 21st October 2019. Agnes Anami Tito is, on the record before me, still living.
7. On 17th June 2009, Musa Kivatse Kamasi petitioned for letters of administration intestate in Vihiga Succession Cause No. 47 of 2009. The cause was published in the Kenya Gazette of 8th January 2010. No objection having been lodged, a grant of letters of administration intestate issued to Musa Kivatse Kamasi on 14th July 2010.
8. That grant was confirmed on 3rd May 2011. The certificate of confirmation (Form P&A 54) distributed North Maragoli/Chamakanga/869 as follows: Musa Kivatse Kamasi - 3 acres; Nafasi Logongo Kamasi - 4 acres; Agnes Anami Tito - 1 acre. Parcel 869 was thus, on the Court’s own record, treated as the asset of the estate as far back as 2011.
9. On 30th November 2016, Nafasi Logongo Kamasi took out a summons for revocation of that grant. On 28th September 2017 the application came before Hon. W. K. Cheruiyot, RM, was unopposed, and was allowed as prayed. By order issued on 3rd October 2017 the Court: (a) issued preservatory orders over L.R. No. Kakamega/Chamakanga/869; (b) revoked and annulled the grant issued to Musa Kivatse Kamasi on 14th July 2010; and (c) cancelled the transfer of parcel 869 and directed that title revert to the deceased.
10. Nothing further was done to implement that order. Nafasi Logongo Kamasi fell ill and died on 21st October 2019. Musa Kivatse Kamasi had also died.
11. On 15th March 2022, in Vihiga PM Succession Cause No. 30 of 2022 (the estate of Musa Kivatse Kamasi), the Appellant obtained a limited grant of letters of administration ad litem "substituting deceased in Vihiga PMCC Succession No. 47 of 2009."
12. Armed with that limited grant, the Appellant filed an application dated 23rd May 2022 in Succession Cause No. 47 of 2009 seeking "substitution" of the deceased Petitioner. On 6th October 2022 the application came before Hon. R. M. Ndombi, SRM. The proceedings record only Mr. Kiveu, counsel for the Applicant, as being present. The Court ruled: "Application dated 23/5/2022 is allowed. Fresh grant to be issued in the names of Applicant, Samuel Vuhuru Kamasi. Case no. closed."
13. The grant of letters of administration intestate to the Appellant bears the date 5th October 2022 - a day before the ruling authorizing it. The record offers no explanation for that anomaly.
14. The Appellant then filed a summons for confirmation dated 27th December 2022, which was placed in the registry on 16th February 2023 and fixed for hearing on 27th March 2023 with the direction that "all beneficiaries to attend." On 27th March 2023 three persons attended - the Appellant, Evans Adegu Lugongo and Agnes Anami Tito - and the grant was confirmed. The certificate of confirmation is dated 29th March
2023 and distributes Chamakanga/North Maragoli/869 as: Samuel Vuhuru Kamasi - 3 acres; Evans Adegu Lugongo - 4 acres; Agnes Anami Tito - 1 acre.
15. Two features of the confirmation proceedings are material. First, the Appellant’s affidavit in support of the summons for confirmation states, in terms, that "the estate of the deceased is comprised of: CHAMAKANGA/NORTH MARAGOLI/869" and that the heirs are Samuel Vuhuru Kamasi, Agnes Anami Tito and Evans Adegu Lugongo. Secondly, the "Consent on Distribution - General Form" in the record is unexecuted: the column reserved for the signatures of the beneficiaries is blank.
16. The Respondent was neither named as an heir or dependant, nor served, nor cited, at any stage of the proceedings that produced the grant of 5th October 2022 or its confirmation on 27th March 2023.
17. On 5th July 2024 the Respondent took out the summons for revocation of grant that gave rise to the impugned ruling, supported by her affidavit sworn on 4th July 2024. Interim preservatory orders issued on 8th July 2024. The Appellant filed a replying affidavit sworn on 16th August 2024 and filed on 19th August 2024. Directions were taken on 29th July 2024 and 20th August 2024, and the ruling was delivered on 26th September 2024.
18. By a subsequent ruling delivered on 4th February 2025, the trial Court granted a stay of execution of the ruling of 26th September 2024 pending the hearing and determination of this appeal, on condition that the Appellant deposit Kshs. 100,000/= as security. The cause was stayed accordingly.
C. THE IMPUGNED RULING
19. The learned trial Magistrate identified the issue as whether the Appellant obtained the grant fraudulently, and whether he had the right to apply for letters of administration at all. She set out section 66 of the Law of Succession Act, Rule 26 of the Probate and Administration Rules and Section 76 of the Act, and relied on Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR, Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No. 158 of 2000, and In re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR.
20. Her operative findings were, in substance, three:
a. that the Appellant had failed to obtain the consents of all beneficiaries as required by Rule 26 of the Probate and Administration Rules, the Respondent and the children of Nafasi
Logongo Kamasi never having renounced their rights;
b. that the Appellant had failed to disclose to the Court, when he moved for a fresh grant, that a grant in the same estate had already been obtained by his late father and had been revoked; and
c. that there was, accordingly, concealment of material facts within the meaning of section 76(b).
21. She made seven orders: preservatory orders against the Appellant (Order 1) and against the Land Registrar, Vihiga (Order 2); revocation of the grant and cancellation of the transfer of parcel 869 with reversion of title to the deceased (Order 3); a declaration that the grant had been obtained fraudulently and by concealment (Order 4); a direction that a fresh grant issue to Rose Kavere and to "the elder child of Nafasi Lugongo Kamasi" (Order 5); no order as to costs (Order 6); and leave to appeal within 30 days (order 7).
D. THE APPEAL AND THE RIVAL CASES
22. The memorandum of appeal dated 22nd October 2024 raises six grounds, which may be compressed as follows: that the trial Magistrate erred (i) in proceeding with the application notwithstanding the Respondent’s protestation that she had not sanctioned its filing and that her signature had been forged; (ii) in failing to find that parcel Kakamega/Chamakanga/912 did not form part of the estate; (iii) in entertaining issues arising from parcel 912 without jurisdiction; (iv) in preferring a daughter-in-law over the deceased’s surviving children and grandchildren; (v) in making findings of fact unsupported by any evidence; and (vi) in making drastic orders occasioning a miscarriage of justice.
23. For the Appellant it was submitted that where a party protests that she gave no instructions to prosecute her case, the application is a "nonstarter"; that the learned Magistrate’s decision was therefore unsupported by evidence; that preferring a daughter-in-law disregarded Section 66 of the Act; and that, on the authority of Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR and Otieno v Ougo, the Respondent lacked locus standi. Reliance was also placed on Joyce Ngima Njeru & Another v Ann Wambeti Njue [2012] eKLR for the proposition that Section 76 is a vehicle to attack the process of obtaining a grant and not the merits of a decision.
24. For the Respondent it was submitted that no formal affidavit disowning the application was ever filed by the Respondent herself; that no forensic evidence was tendered, no cross-examination sought and no complaint lodged against the firm of advocates; that the operative orders concern parcel 869 and not 912; that section 66 confers a final discretion on the Court which was exercised judiciously; and that the Section 76 threshold was amply met.
E. THE DUTY OF A FIRST APPELLATE COURT
25. Both parties correctly identified the applicable standard. On a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and to draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and must make proper allowance for that disadvantage: Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
26. That duty is, however, tempered. An appellate Court will not lightly interfere with findings of fact. In Peters v Sunday Post Limited [1958] EA 424 it was held that interference is warranted only where it is apparent that, on the evidence, no tribunal could reasonably have reached that conclusion, or where the trial Court proceeded on no evidence, or on a misapprehension of the evidence, or on wrong principles.
27. Where, as here, the decision under appeal involved the exercise of a judicial discretion - both the discretion to revoke under Section 76 and the discretion as to appointment under Section 66 - the test is stricter still. Following Mbogo & Another v Shah [1968] EA 93, this Court will interfere only if satisfied that the trial Court misdirected itself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Court was clearly wrong in the exercise of its discretion and that injustice has resulted.
28. I would add one qualification, which becomes important later in this judgment. The deference owed to a discretionary decision attaches to the exercise of a power that the Court possessed. Where a Court makes an order that it had no material or no jurisdiction to make - for instance, an order appointing Administrators where no petition for appointment was before it and the persons affected were never heard - the question is not one of discretion at all, and the appellate Court’s duty to intervene is engaged directly.
F. ISSUES FOR DETERMINATION
29. Having considered the pleadings, the record and the submissions, the issues that fall for determination are:
i. Whether the Respondent had locus standi, and whether the trial Court erred in proceeding with the application in the face of the alleged repudiation of instructions and allegation of forgery;
ii. Whether the trial Court lacked jurisdiction to entertain issues touching parcel Kakamega/Chamakanga/912, and whether it erred in not finding that parcel 912 was not part of the estate;
iii. Whether the threshold for revocation under section 76 of the Law of
Succession Act was met; iv. Whether the trial Court made findings unsupported by evidence; and v. Whether the consequential orders — and in particular order 5 — can stand.
G. ANALYSIS AND DETERMINATION
Issue (i): Locus standi, repudiation of instructions and forgery
30. I take the question of locus standi first, because if the Respondent had no standing the appeal would end there.
31. Section 76 of the Act permits revocation "either on application by any interested party or of [the Court’s] own motion." The phrase "interested party" is deliberately broad. It is not confined to a personal representative, and it plainly extends to a person whose beneficial entitlement, or whose deceased husband’s beneficial entitlement, is affected by the grant under attack.
32. The Respondent qualifies on two independent bases. First, her late husband Nafasi Logongo Kamasi was a beneficiary of this very estate, having been allotted 4 acres of parcel 869 under the confirmed grant of 3rd May 2011. His widow has an obvious and direct interest in what becomes of that entitlement. Secondly, and conclusively, the Respondent holds a limited grant of letters of administration ad litem in the estate of Nafasi Logongo Kamasi, issued in Vihiga PM Misc. Succession Cause No. E037 of 2024, expressly "for the purposes of representation, prosecuting and/or filing suit."
33. That second basis disposes of the Appellant’s own authority against him. In Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] eKLR the Court of Appeal said, in the passage the Appellant himself reproduced, that "a litigant is clothed with locus standi upon obtaining a limited grant or a full grant of letters of administration." The Respondent obtained precisely such a limited grant before moving the Court. The rule in Otieno v Ougo - that an Administrator may not sue before taking out letters - is therefore satisfied, not offended. The ground on locus standi fails.
34. I turn to the allegation of repudiated instructions and forgery, which is the Appellant’s principal ground and was pressed hardest in submissions. The submission is that where a party protests that she never instructed the advocate on record, the application is a "nonstarter" and the Court should go no further.
35. As a proposition of law, that is too broadly stated, but it contains a kernel of truth. An advocate is an Officer of the Court and there is a strong presumption that an advocate who files process does so on instructions. That presumption is rebuttable. But it is not rebutted by assertion, and certainly not by the assertion of an opposing party.
36. The difficulty for the Appellant is evidential, and it is fatal at four levels.
37. First, the allegation is one of forgery. Forgery is a species of fraud. It must be specifically pleaded, particularized, and strictly proved: Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR. The standard of proof, while not the criminal standard, is higher than the ordinary civil balance of probabilities: Kinyanjui Kamau v George Kamau [2015] eKLR. Nothing approaching that standard was attempted here. No document examiner was instructed. No specimen signatures or thumbprints were placed before the Court. No application was made under Order 19 rule 2 of the Civil Procedure Rules to cross-examine the Respondent on her affidavit — which, had the Appellant ’s theory been sound, would have been the obvious and inexpensive course. No complaint was lodged with the Law Society of Kenya or the Advocates Complaints Commission against a firm alleged to have committed forgery, uttering and making a false document. A litigant who genuinely believes that an advocate has forged his opponent’s signature does not confine his response to a paragraph in a replying affidavit.
38. Secondly, the Appellant’s own case is internally inconsistent. At paragraph 5 of his replying affidavit, he deposes that the Respondent "was categorical that she has never signed any document as she is illiterate but instead uses her thumb print like the one shown on annexed SVK-1." Yet the very document on which he relies - SVK-1, the affidavit said to have been sworn by the Respondent - is, on his own account, executed by an illiterate deponent. An affidavit by a person who cannot read the language in which it is written requires a proper jurat certifying that the contents were read over, translated and understood, in accordance with the Oaths and Statutory Declarations Act. The Appellant offers no such certificate. He cannot simultaneously contend that the Respondent’s mark on a Court document is worthless because she is illiterate, and that her mark on his annexure is conclusive.
39. Thirdly, and decisively for an appellate Court, SVK-1 is not in the Record of Appeal. I have examined the record page by page. The replying affidavit appears at pages 39 and 40; page 41 moves directly to the summons for confirmation. The annexure on which the entire first ground of appeal rests has simply not been placed before this Court. It is the Appellant who prepared and certified the record, and who bears the burden of demonstrating error. An appellate Court cannot find that a trial Court erred in its treatment of a document that the Appellant has not troubled to include. The ground is unsupported on the record.
40. Fourthly, the conduct of the Respondent is wholly inconsistent with repudiation. The firm of Ben Aduol Nyanga & Co. Advocates has been on record for the family for some time now including when it prosecuted the successful revocation application of Nafasi Logongo Kamasi. It appeared for the Respondent at every stage of the 2024 application, on 21st November 2024, on 4th February 2025, and it has filed the Respondent’s submissions in this appeal. On 29th July 2024, Counsel for the Respondent told the trial Court that his client "did not know that the grant was confirmed and she was forced to sign the documents and some of the people who visited were relatives together with strangers." That statement from the bar, made months before the ruling, offers a coherent explanation for the provenance of SVK-1 which the Appellant never answered. Even if a document had once been procured from the Respondent, her sustained conduct amounts to a clear adoption and ratification of the proceedings brought in her name.
41. The Appellant’s reliance on Joyce Ngima Njeru & another v Ann Wambeti Njue [2012] eKLR does not assist him. The passage he quotes confirms that Section 76 is "meant to be used as a vehicle to attack and fault the process of either obtaining the Grant... It is not meant to fault the decision on the merits." That is precisely what the Respondent’s application did. It attacked the process - the absence of citation, the absence of consents, the non-disclosure of the earlier revoked grant. The authority is against the Appellant, not for him.
42. Ground 1 accordingly fails.
Issue (ii): Jurisdiction and parcel Kakamega/Chamakanga/912
43. Grounds 2 and 3 may be taken together. The Appellant complains that the trial Court entertained issues arising from parcel 912 without jurisdiction, and that it failed to find that parcel 912 was not part of the estate.
44. These grounds are misconceived for a simple reason: the trial Court made no order in respect of parcel 912. Every operative order - orders 1, 2 and 3 is/are directed at L.R. No. Kakamega/Chamakanga/869. Parcel 912 features only in the narrative recital of the parties’ rival accounts of how the deceased is said to have dealt with his land during his lifetime. An appeal does not lie against a recital. Obiter observations that do not found any order cannot ground a complaint of jurisdictional excess.
45. On jurisdiction more broadly, I accept the Respondent’s submission. Section 47 of the Law of Succession Act, read with Rule 73 of the Probate and Administration Rules, confers on the succession Court jurisdiction to entertain any application and determine any dispute under the Act. That necessarily includes the power to inquire, for the purposes of Section 76, whether estate property has been concealed or misdescribed. There is a real distinction - and the trial Court respected it - between identifying what falls into an estate for probate purposes and adjudicating title under the land statutes. Only the latter is reserved to the Environment and Land Court. The trial Magistrate did not purport to determine title to parcel 912, and did not do so.
46. As to whether parcel 912 formed part of the estate: on the material before me nobody contends that it does. The Appellant’s replying affidavit asserts that 912 was purchased by his father and is not estate property. The certificate of official search for 912 shows Musa Kamasi as proprietor. The Respondent’s case is that 912 was the portion held by Musa’s house and 869 the portion held by Nafasi’s house. The point is academic to this appeal.
47. There is, however, a more serious difficulty for the Appellant here, and it is one of consistency. His memorandum of appeal and submissions press the theme that "the land in question did not form part of the estate." Yet his own affidavit sworn in support of the summons for confirmation states in terms that the estate of the deceased "is comprised of: CHAMAKANGA/NORTH MARAGOLI/869." He obtained a confirmed grant on that sworn basis, and title passed on that basis. A litigant may not approbate and reprobate. Having obtained a grant by swearing that parcel 869 was the estate asset, the Appellant cannot now resist revocation by contending the contrary. Grounds 2 and 3 fail.
Issue (iii): Whether revocation under Section 76 was justified
48. Section 76 provides that a grant, whether or not confirmed, may at any time be revoked or annulled if the Court decides - on the application of any interested party or of its own motion - that (a) the proceedings to obtain the grant were defective in substance; (b) the grant was obtained fraudulently by the making of a false statement or by the concealment from the Court of something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law, notwithstanding that the allegation was made in ignorance or inadvertently.
49. The power is discretionary and must be exercised judicially. As Mwita
J. observed in Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession
Cause No. 158 of 2000 - a decision the trial Court itself cited - the power "is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the Court to invoke Section 76." The same theme runs through Jamleck Maina Njoroge v Mary Wanjiru Mwangi [2015] eKLR.
50. Applying that standard, I have re-evaluated the record for myself. In my judgment the Section 76 threshold was met, and met comfortably indeed on more grounds than the trial Court articulated.
51. Defect in substance - Section 76(a). The route by which the Appellant came to hold a grant in this estate was, with respect, unknown to probate practice. When the grant to Musa Kivatse Kamasi was revoked and annulled on 28th September 2017, the estate reverted to the position of being unadministered. The proper course was a fresh petition under Section 51, supported by the particulars that provision requires, advertised under Rule 7, and supported by the consents or citations required by Rule 26. What happened instead was an application to "substitute" a deceased petitioner in a cause that had already been terminated by revocation - a procedure borrowed from ordinary civil litigation and having no application to a petition for representation. A petition is not a suit; a personal representative is not a Plaintiff whose cause of action survives to his estate. There is no such thing as inheriting the office of Administrator.
52. The defect is compounded by the fact that the Appellant’s authority to act at all derived from a limited grant ad litem in his late father’s estate (Succession Cause No. 30 of 2022). A grant ad litem is limited by its very terms to representation in litigation. It does not confer on its holder any entitlement to petition for, still less to receive, a full grant of letters of administration in a different* estate. The Appellant used a key cut for one door to open another.
53. Nor was the application heard inter partes. The proceedings of 6th October 2022 record only Mr. Kiveu as present. No notice went to Agnes Anami Tito, the deceased’s surviving daughter; none to the Respondent; none to the children of Nafasi Logongo Kamasi. And the grant itself bears the date 5th October 2022 - a day earlier than the ruling that authorised it. Whatever the explanation for that, it is not a record of regularity.
54. Concealment of material facts - Section 76(b). Section 51(2) of the Act requires a petitioner to state, to the best of his knowledge and belief, the full and accurate particulars of the assets and liabilities of the deceased and the names and addresses of all surviving spouses, children, and other persons beneficially entitled. Rule 26(1) prohibits the grant of letters of administration to an Applicant without notice to any person entitled in the same degree or in priority; Rule 26(2) requires, in default of consent in Form 38 or 39, that the application be supported by an affidavit and such further evidence as the Court requires.
55. The Appellant complied with none of this. His affidavit in support of confirmation named three heirs and omitted the Respondent altogether. The Consent on Distribution in the record is blank in the signature column - an unexecuted form is no consent at all. And most seriously, when he moved the Court for a fresh grant, he did not disclose the single most material fact in the history of the cause: that a grant in this very estate had been issued to his own father in 2010, confirmed in 2011, and revoked and annulled by the same Court in 2017, with an order that title to parcel 869 revert to the deceased.
56. That was not a peripheral omission. Had the Court of 6th October 2022 been told that it was being asked to issue a fresh grant to the son of an Administrator whose grant it had itself revoked for irregularity five years earlier - and to do so ex parte - it is inconceivable that the application would have been allowed on the papers. The concealment was material in the fullest sense: it deprived the Court of the very information that would have caused it to act differently.
57. The observations in In re Estate of Moses Wachira Kimotho (Deceased) [2009] eKLR, relied on by the trial Court, are directly in point. Had the beneficiaries been served, they would have brought their interests to the fore and the resulting grant would have accommodated them. That is exactly what did not happen here.
58. I am therefore satisfied that the requirements of Section 76(a) and 76(b) were both established, and that the learned Magistrate’s conclusion that the grant should be revoked was not merely open to her but was, on this record, the only proper conclusion. Ground 6 - that the orders were "drastic" - must be answered by observing that revocation is the ordinary and proportionate consequence of a grant obtained in this manner. Where a grant is procured without notice to those entitled and without disclosure of a prior revocation, revocation is not drastic; it is corrective.
Issue (iv): Whether findings were made without evidence
59. Ground 5 alleges that the trial Magistrate made findings of fact unsupported by the evidence. I approach this ground with more sympathy than the others, and I do not think it can be dismissed out of hand. Candour requires that the deficiencies in the ruling be identified.
60. First, the ruling contains several factual inaccuracies. It records that the grant to Musa Kivatse Kamasi "was revoked on 14th February, 2010" - a date that cannot be right, the grant having issued on 14th July 2010 and having been revoked on 28th September 2017. It records the grant to the Appellant as having been issued "on 27th March, 2023" and elsewhere "29th March, 2023," when in truth the grant issued on 5th October 2022 and was confirmed on 27th March 2023. It gives the deceased’s date of death as 25th August 1985 in the operative order and 25th May 1985 in the recital, while the grant document says 25th November 2007.
61. Secondly, and more troublingly, the ruling contains a passage concerning "contractual interest," "the persons who sold the suit property to it," and parties who "clearly appreciated the contingencies that may affect the obligations of the parties under the contract." There was no sale contract before the trial Court. No such issue arose on the pleadings. That passage appears to have found its way into the ruling from some other matter, and it should not be there.
62. Thirdly, the ruling reasons that "the burden to disprove the Applicant’s case shifted to the Respondent" and that "the Respondent did not call any evidence." That is loose. This was an application determined on affidavit evidence; no viva voce evidence was called by either side. The Appellan
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