Mary Kache Michael Maskini & 1 other v Doreen Magret Dzimba & 1 other

20625 (Original No.18912/6) be cancelled and the Land Registrar Mombasa be ordered to revert and /or rectify the title and interest to the name of the deceased herein, Anderson Victor Mitchell; f. That this honourable court pleased to extend the time for the applicants to file an objection to the undated petition for grant of letters of administration intestate filed on 27 September 2010, and upon such extension of time, the applicants be granted leave to file the said objection within 14 days of such order; g. That in the interest of justice, this honourable court be pleased to make such additional orders and give such further directions as it shall deem fit; and h. That the costs of this application be provided for. 2. The summons is premised on the grounds stated therein and also on the affidavit of Mary Kache Michael Maskini, sworn on 27th January 2025, vide which she said that her husband, the late Harry Mitchell Maskini, was a brother to the petitioners/respondents, and the firstborn son to the deceased herein. Her husband died on 30th July 2006, while his father died on 29th September 1977. 3. She further stated that they have always possessed and resided on Plot No.18912, which her late husband and his siblings share. That they have made improvements and put up developments for their benefit and the benefit of their children. 4. She averred that the petitioners managed to have the title of the subject portion of land issued to them without her knowledge and have subdivided the same without informing her. She deposed that the petitioners deliberately left out Harry’s heir as they did not involve her and her children, and or the estate of Harry in the succession proceedings. 5. In response, the petitioners filed a replying affidavit sworn on 9th April 2025 by Emmanuel Christopher Chengwimbwe. He termed the application an abuse of the court process since the intended objectors have been provided for. He deposed that the applicants have always been aware of the proceedings. He stated that the first applicant was informed that she would be given the parents' home and the land it sits on, as it is the largest portion. Furthermore, they have consistently represented themselves as holding the property of the estate in trust for the dependants. 6. He further stated that the land was subdivided, with the applicants getting the biggest portion. In his view, the applicants were not excluded as beneficiaries, but as administrators. 7. He stated that the applicants did not object to the grant despite the gazettement of the same. The deponent contended that no evidence was presented to warrant the revocation of the grant. He urged the court to dismiss the application with costs. 8. The summons was canvassed by of written submissions. Both parties filed written submissions, the summaries of which I will provide below. 9. The applicants, through their advocates Wanjiku Mohamed Advocates LLP, filed written submissions dated 26th May 2025. Counsel submitted on four issues namely: whether the petitioners herein made false statement of fact that was material to the case and/or concealed material facts from the honourable court; whether the procedure or manner in which the petitioners filed for and obtained the grant herein denied the applicants an opportunity to ventilate their claims to Subdivision No. 18912/1/Mainland North; whether the applicants have in fact been provided for and whether that, if proved, can sanitize the conduct, omissions and/or misrepresentations of the petitioners herein; and, what orders should issue. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19444/eng@2025-09-30 2

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10. On the first issue, counsel submitted that the late Harry Mitchell Maskini was entitled to his share as he survived his father, who died on 29th September 1977, while he died on 30th July 2006. The nondisclosure by the petitioners was deliberate, resulting in the making and confirmation of a grant which does not reflect the true position. 11. On the 2nd issue, counsel submitted that the petitioners did not involve them in the process of obtaining a grant, nor did they furnish the court with correct information on the beneficiaries of the deceased’s estate, thus making the proceedings defective in substance. 12. On the third issue, counsel submitted that the provision of beneficiaries in succession matters cannot be done outside the provisions of the Law of Succession Act and Probate & Administration Rules, and or left to the discretion of the petitioners. 13. On the fourth issue, counsel urged the court to revoke the grant used to subdivide the subject property. 14. In conclusion, counsel urged the court to allow the application as prayed. 15. The petitioners, through their advocates Muturi Gakuo & Kibara Advocates, filed written submissions dated 8th July 2025. Counsel submitted that the applicants are not deserving of the orders sought and urged the court to dismiss the application with costs. 16. I have perused the application and the responses thereto. I have considered the submissions of the parties. The main issue in this matter is whether the grant issued herein should be revoked. 17. Section 76 of the Law of Succession Act provides for grounds of revocation as follows; A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion— a. That the proceedings to obtain the grant were defective in substance; b. That 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; c. that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; d. That the person to whom the grant was made has failed, after due notice and without reasonable cause either— e. i. To apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or ii. To proceed diligently with the administration of the estate; or iii. To produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or That the grant has become useless and inoperative through subsequent circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19444/eng@2025-09-30 3

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18. On the court’s power to revoke a grant, the court in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) stated that:“ 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 wrongdoing 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 the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 19. The court in the case of re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR) observed as follows on non-disclosure of material facts from the court:“ Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberimae fidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, nondisclosure of material facts undermines justice and introduces festering waters into the pure streams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.” 20. From the record, it is evident that the petitioners did not include the applicants as beneficiaries in their petition, nor were they involved in the process of obtaining the grant. The petitioners/respondents were aware of them and should have made a full disclosure. The petitioners have not disputed this fact, nor have they disputed that the applicants are beneficiaries of the deceased estate. 21. It is on the basis of the false representation that the grant was issued to them to the exclusion of the estate of their deceased brother. The grant was subsequently confirmed on 5th October 2011. The Certificate of Confirmation of Grant makes no mention of the estate of Harry Mitchell Maskini. 22. Having shown that the grant was obtained through concealment and or non-disclosure of material information, it is my finding that the applicants have established grounds for revocation of the grant. In the circumstances, I hereby revoke the grant issued on 23rd December 2010, and confirmed on 30th September 2011. 23. In view of the nature of the matter, the parties will bear their own costs. 24. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 30TH DAY OF SEPTEMBER 2025. RULING POSTED ON THE CTS PORTAL. GREGORY MUTAI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19444/eng@2025-09-30 4

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