Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR)
The bottom line
#The Court of Appeal ruled that anyone with an interest in a deceased person's estate, even a buyer or creditor, can challenge a succession grant, but must prove fraud allegations with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a debtor/purchaser claiming an interest in a deceased's estate has locus standi to seek revocation of a grant of letters of administration
Yes. 'Any interested party' under Section 76 of the Law of Succession Act extends beyond heirs under Section 66 and accommodates any person with a right or expectancy in the estate, including purchasers and creditors.
Following its own decision in Musa Nyaribari Gekone, the Court held that the expression 'any interested party' bears its plain and ordinary meaning and is wide enough to accommodate any person with a right or expectancy in the estate. The respondent's alleged purchase of the deceased's property qualifies him as an interested party with standing, notwithstanding High Court authorities to the contrary.
Whether an application for revocation of grant is time barred under Section 7 of the Limitation of Actions Act
No. A revocation application is not an action to recover land, and Section 76 permits revocation at any time before or after confirmation of the grant.
Section 7 bars actions to recover land after twelve years. The proceedings before the probate court were not for recovery of land but for revocation of a grant. Section 76 expressly provides that a grant, whether or not confirmed, may at any time be revoked on application by an interested party. The trial Judge therefore correctly construed the running of time.
Whether the application for revocation was merited
No. The respondent's allegations of fraud, forgery and non-disclosure were unsupported by evidence and his claim that the two parcels were the same was unproved; the High Court's order staying the grant and summoning the Lands Registrar was erroneous.
Although bold assertions of fraud and forgery were made, no evidence was availed in support. The respondent's assertions that his land was concealed and simultaneously disclosed under a different description were self-contradictory. Under Sections 107-109 of the Evidence Act he bore the burden of proof. The Judge's decision to summon the Lands Registrar effectively aided the respondent to gather evidence in a probate court, and the appeal was allowed.
Legal principles established
#- An interested person under Section 76 of the Law of Succession Act is not limited to heirs enumerated under Section 66; a person who can show an interest in the estate, including a purchaser or creditor, has locus standi to seek revocation of a grant.
- A summons for revocation of grant is not an 'action to recover land' within Section 7 of the Limitation of Actions Act, and an application for revocation may be made at any time before or after confirmation of the grant.
- A party alleging fraud, material non-disclosure or that land claimed is part of a deceased's estate bears the burden of proving those allegations; a revocation application devoid of proof ought to be dismissed.
Court orders
#- 1.The appeal is allowed
- 2.Costs of the appeal to the appellants
- On appeal from
- High Court of Kenya at Mombasa
- High Court Succession Cause No. 140 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (succession appeal from the High Court exercising probate jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ansazi Gambo Tinga & another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR)", Case Analysis (2019). Civil Appeal No. 74 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/803/eng@2019-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.