Peter Musembi Nyala v David Muthoka Nyala

3. Additionally, the Applicant deponed that he discovered that as at the time of filing the succession proceedings and the time for confirmation of grant, the Administrator/Respondent concealed some information from this Honourable Court and left out Land Parcel Number Konza South/Konza South Block 5 (Konza)/2784, belonging to their late mother and thus forming part of her Estate. He further averred that on or about 13/6/2018, before the grant herein was confirmed, the Administrator/ Respondent caused the said parcel of land to be fraudulently transferred to him and a title deed issued, without the knowledge of other beneficiaries. The Administrator/Respondent further caused the said parcel of land to be sub-divided into four portions to create land parcels number Konza South/Konza South Block 5 (Konza)/11824. 11825, 11826 & 11827, which are all registered in his name. 4. The Applicant deponed that the transfer of land parcel number Konza South/Konza South Block 5 (Konza)/2784 to the Administrator's/Respondent's name and the subsequent subdivision was illegally and fraudulently done with the intention of disinheriting other beneficiaries of the Estate herein. 5. In opposing the application, the Administrator/Respondent filed his grounds of opposition dated 18/1/2022. The Respondent and one of the beneficiaries to the Estate herein, one Rodah Minoo Nyala, further filed replying affidavits sworn on 3/6/2023 and 3/6/2024, respectively. The Respondent averred that the reason he did not include the said parcel is that the title therefor had not yet been issued at the time of filing the Petition, and that when he finally got the Title, he had it registered in his name only for the purpose of transmitting it to the rightful beneficiaries, being his four sisters and the protestors herein. The protestors on their part filed an affidavit of protest in which they affirmed the administrator’s intentions and opposed the application for revocation of Grant. 6. To counter the averments made in the replying affidavits in support of the Administrator's/ Respondent's case, the Applicant filed a further affidavit sworn on 24/7/2023. The Applicant thereafter filed a supplementary affidavit in response to the depositions in the replying affidavit of Rodah Minoo Nyala. 7. Parties were directed to file written submissions in canvassing the application. The Applicants submissions are dated 12/2/2025 while the Respondent’s submissions are dated 17/3/2025. 8. I have considered the application herein, the responses thereto and rival submissions by both counsels. I find the issue that arises for determination is whether the Grant of Letters of Administration made to the Administrator/Respondent herein on the 22/12/2015 and confirmed on 6/3/2019 should be revoked and a fresh Grant of Letters of Administration intestate do issue to the Applicant. It is worth noting first, that the parties admit that land parcel number (Machakos/Konza North BLock/ 1090) and land parcel number Konza South/Konza South Block 5 (Konza)/2784 forms part of the deceased's Estate; second, that the deceased had bequeathed parcel number Machakos/Konza North BLock/ 1090 to her three sons and Konza South/Konza South Block 5/ (Konza)/2784 to her four daughters; third, that the Administrator has caused to be transferred to himself and later to be subdivided into four portions land parcel number Konza South/Konza South Block 5 (Konza)/2784 which subdivision the Applicant avers that was done fraudulently and that the said property was concealed when the Respondent was petitioning for letters of Administration. This seem to be the bone of contention of this matter. 9. However, the Applicant denies that this was an intentional concealment, or that the registration of title to the parcel in his name was intended to disinherit the Estate. He explained that the title for the property was not yet out at the time of filing the Petition, and that as soon as he obtained the title therefor, he had the same divided into 4 parcels in readiness for transfer to the deceased’s four daughters just like she had intended. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14298/eng@2025-06-19 2

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10. The four daughters to the deceased, (the protestors herein) have opposed the Applicant’s application for revocation and affirmed the Administrator’s intentions. 11. I note that the Applicant does not dispute the fact that the deceased before her demise already shared out the two properties, one for her sons and one for her daughters. He does not claim any interest in the parcel number Konza South/Konza South Block 5/ (Konza)/2784 for the daughters. 12. This means that even if the Grant was to be revoked, it would only be an academic exercise because any new administration would just be a long route to the same destination, that of getting four titles out of Konza South/Konza South Block 5/ (Konza)/2784 and transferring them to the deceased’s four daughters. 13. This means further that revoking the Grant or appointing another administrator would only further delay completion of administration of the Grant, which will not serve the interests of the Estate. 14. It is important to bear in mind the provisions of Section 47 of the Law of Succession Act which enjoins the High Court to entertain any application and determine any dispute under the Act and pronounce such decrees and make such orders therein as may be expedient. Further, under Rule 73 of the Probate and Administration Rules it is provided that: “ Nothing in these Rules shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." 15. I agree with the decision of the High Court in In re the Estate of Chebet Maritim (Succession Cause 58 of 2015) [2024] KEHC 10013 (KLR) (9 August 2024) (Ruling) where the court declined to revoke a Grant on the basis inter alia that revoking it would serve no useful purpose. The Court stated as follows: “ Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 16. In the instant case, it is clear that the interests of the beneficiaries dictate that the Administrator proceeds forthwith to transfer the land parcels to the respective beneficiaries to implement the deceased’s wishes. No one has expressed any disagreement with this mode of distribution. Revoking the Grant would serve the contrary purpose, that of delaying full administration of the Estate. 17. Accordingly, I that the Applicant’s application dated 11/5/2022 lacks merit and is hereby dismissed with each party bearing their own costs. 18. The Administrator/Respondent is directed to expedite the completion of the administration of the Estate within the time specified in law with all the respective beneficiaries giving him the necessary cooperation he requires for the same. 19. The matter to be mentioned after six months to confirm completion of transmission and distribution of the Estate and for closure of the file. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 19TH JUNE 2025 NOEL I. ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14298/eng@2025-06-19 3

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JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 19TH JUNE 2025 In the presence of: Mr. Mwangi hb for Mrs Nyata................. for Applicant Ms. Kalinga......................... ..for Respondent Milly....................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14298/eng@2025-06-19 4

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