Thomas Gisairo Nyakanga v Joseph Michieka Momanyi

2. The Application is supported by the Applicant’s affidavit wherein he avers that the Magistrate’s Court in Keroka heard the succession cause, issued the Grant, confirmed it and was therefore functus officio as titles have already been issued after the Estate was distributed. He avers that the prayers to stay the distribution of the Estate have already been overtaken by events and that the said court therefore lacks the jurisdiction to sit as an appellate court over the same matter. 3. The Respondent opposed the Application through the Replying Affidavit dated 1st July 2025 wherein he avers that he only learnt of the succession proceedings when he received summons from the office of the Nyamira County Surveyor informing him of a scheduled visit to demarcate their father’s land vide letter date 26th March 2025 (annexure marked ‘JMM2’). He avers that the filing of the application for revocation of Grant was occasioned by his exclusion from the succession proceedings before the Keroka Law courts. 4. The Application was canvassed by way of written submissions which I have considered. I find that the following issues fall for my determination: a. Whether the Keroka Principal Magistrate’s Court is functus officio after confirming the Grant and issuing titles to the beneficiaries. b. Whether the Magistrate’s Court has jurisdiction to entertain an application for revocation or annulment of a confirmed Grant. c. Whether the Magistrate’s Court can stay distribution or make any orders affecting titles already transmitted. d. Whether this Court should stay proceedings in Keroka Succession Cause No. E019 of 2023 pending its determination. Analysis and Determination Functus Oficio and Jurisdiction after Conffrmation of Grant 5. The Applicant argued that once a court confirms a Grant under Section 71 of the Law of Succession Act (the Act), it becomes functus officio. I however find that the Applicant’s argument is not correct as the law provides for instances where, even after confirmation, the Grant may be revoked or annulled. Indeed Section 76 of the Law of Succession Act provides as follows: A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides... 6. The above cited section does not distinguish between a confirmed and unconfirmed grant as it states that the courts’ power to revoke subsists “at any time,”. This means that the same court that issued the Grant may exercise that power if grounds exist under Section 76(a)–(e) of the Act. In In re Estate of Gachau Kiarie (Deceased) [2016] eKLR, Musyoka J held: “ The court that made the grant is the one that should ideally deal with its revocation. The fact that a grant has been confirmed does not deprive the court of jurisdiction to revisit the matter.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19365/eng@2025-10-30 2

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7. Similarly, in In re Estate of Mwangi Gachau (Deceased) [2019] eKLR, the High Court stated that: “ The doctrine of functus officio does not apply to succession proceedings in the strict sense because the law expressly allows revocation even after confirmation.” 8. It is therefore my finding that the Keroka Magistrate’s Court was not functus officio merely because it had confirmed the Grant and authorized transmission. Jurisdiction of the Magistrate’s Court to Revoke a Grant 9. Jurisdiction of magistrates in succession matters is governed by Section 48(1) of the Law of Succession Act as read with the Magistrates’ Courts (Amendment) Act, 2015 and Legal Notice No. 39 of 2017, which confer jurisdiction to handle succession causes where the gross value of the estate does not exceed KShs. 20 million. 10. I find that the Respondent’s application for revocation was properly filed in the same court that issued the Grant. The High Court in In re Estate of Ndolo Muthoka (Deceased) [2021] eKLR reiterated that: “ Where a magistrate’s court has jurisdiction to issue and confirm a grant, it equally has jurisdiction to revoke it.” 11. I therefore find that the prayer seeking interpretation that the magistrate had no such jurisdiction lacks merit. Power to Stay Distribution or Affiect Titles Already Issued 12. It is possible that once titles have been issued, interests to the said titles may also have passed to third parties. However, under Section 80(1) of the Act, the revocation of a grant has the effect of automatically nullifying all transactions founded on that grant, including titles. The said section stipulates that “A grant when revoked shall be deemed never to have had any effect.” 13. In In re Estate of G.K.K (Deceased) [2017] eKLR, the court held: “ The effect of revocation is to revert the estate to its original status before distribution.” 14. Accordingly, I find that a magistrate’s court may, incidentally to revocation proceedings, issue interim orders to preserve the estate or stay further distribution pending determination of a fresh succession cause. Whether to Stay Proceedings in Keroka Succession Cause No. E019 of 2023 15. One of the prayers sought by the Applicant is stay of proceedings in the Keroka matter. I however find that in view of the finding that said court is properly seized of jurisdiction, and no appeal has been preferred against its actions, an order for stay would be premature and unwarranted. The appropriate recourse would be to allow that court to determine the revocation application on merit. 16. Courts have taken the position that the High Court should be slow to interfere with ongoing proceedings in a court of competent jurisdiction. In Global Tours & Travels Ltd, Nairobi HC Winding Up Cause No. 43 of 2000 it was held that: “ Stay of proceedings is a grave judicial action which should only be resorted to where the proceedings are oppressive, vexatious or abuse of the process of court.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19365/eng@2025-10-30 3

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17. In th present case, I find that no material has been presented to show that the proceedings before the trial court fall within the category of the circumstances highlighted in the above cited case. Conclusion and Orders 18. 19. For the reasons that I have stated in this ruling, I make the following final orders: a. The Notice of Motion dated 17th June 2025 lacks merit and is hereby dismissed. b. The stay of proceedings in Keroka Succession Cause No. E019 of 2023 is declined. c. Costs shall be in the cause. Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19365/eng@2025-10-30 4

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