Thomas Gisairo Nyakanga v Joseph Michieka Momanyi

5. In that ruling, Okwany J definitively held that the Magistrate’s Court had jurisdiction under the Law of Succession Act and declined to interfere with the proceedings before the Keroka court. 6. Once those findings were made, the jurisdictional foundation of the present appeal fell away, leaving for consideration arguments that were, in substance, a re-packaging of matters already rejected. 7. However, lest I be wrong in that conclusion, and in order to put the matter beyond peradventure, I shall nonetheless proceed to consider and determine the appeal on its merits, based on the record, the grounds of appeal, the submissions of the parties, and the applicable law. 8. The Memorandum of Appeal dated 20th August 2025 raises the following grounds: 1. The learned Senior Resident Magistrate erred in law by sitting as a judge of the High Court and cancelling title deeds and setting aside a confirmed grant, thereby rendering the court functus oficio. 2. The learned Magistrate erred in law by re-opening the succession cause and issuing orders amounting to review or setting aside of completed proceedings and issued titles. 3. The learned Magistrate erred in law by cancelling titles emanating from succession proceedings, a jurisdiction allegedly reserved for the Environment and Land Court. 4. The learned Magistrate erred in law by failing to appreciate that the objection was incompetent as the grant had already been confirmed and titles issued after Land Control Board processes. 5. The learned Magistrate’s ruling was oppressive to the Appellant and aided an objector who failed to participate in earlier proceedings. 6. The ruling was against the weight of the evidence and the law. 9. The appeal was disposed off by way of submissions which both parties dutifully filed. 10. The Appellant filed written submissions dated 16th January 2026.Counsel submitted that upon confirmation of the grant on 27th November 2024 and issuance of titles on 04th April 2024, the Magistrate’s Court became functus oficio and lacked jurisdiction to revisit the matter. 11. It was further contended that cancellation of titles lies exclusively within the jurisdiction of the Environment and Land Court. Reliance was placed, inter alia, on Re Estate of Julius Mimano (Deceased) [2019] eKLR. 12. The Appellant urged the Court to allow the appeal, set aside the ruling of 13th August 2025, and reinstate the confirmed grant and titles. 13. The Respondent filed written submissions dated 15th December 2025. Counsel submitted that the Respondent had been excluded from the succession proceedings and that the grant was obtained through concealment of material facts. It was also argued that section 76 of the Law of Succession Act empowers the issuing court to revoke a grant at any time, whether confirmed or not. 14. The Respondent relied on In re Estate of Gachau Kiarie (Deceased) [2016] eKLR, In re Estate of Mwangi Gachau (Deceased) [2019] eKLR, and In re Estate of G.K.K (Deceased) [2017] eKLR, and urged dismissal of the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/752/eng@2026-01-29 2

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Issues for determination 15. Having considered the Memorandum of Appeal, the record, and the submissions, the Court identifies the following issues for determination: 1. Whether the Magistrate’s Court became functus oficio upon confirmation of the grant. 2. Whether the Magistrate’s Court had jurisdiction to entertain and determine revocation proceedings after confirmation of the grant. 3. Whether the Magistrate’s Court had power to issue orders affecting titles already issued pursuant to a confirmed grant. 4. Whether the ruling delivered on 13th August 2025 warrants appellate interference. Analysis and Determination Functus oficio 16. The Appellant contends that confirmation of the grant divested the Magistrate’s Court of jurisdiction. Section 76 of the Law of Succession Act, however, expressly provides that a grant may be revoked or annulled “whether or not confirmed.” 17. In In re Estate of Gachau Kiarie (Deceased) (supra), the Court held that confirmation of a grant does not render a succession court functus oficio. A similar position was taken in In re Estate of Mwangi Gachau (Deceased) (supra), where the Court emphasised the special statutory nature of succession jurisdiction. 18. This Court adopted and afirmed the same reasoning in High Court Miscellaneous Application No. E015 of 2025, and I find no principled basis upon which to depart from it. Accordingly, I find that the Magistrate’s Court did not become functus oficio upon confirmation of the grant. Jurisdiction to revoke a confirmed grant 19. Jurisdiction of Magistrates’ Courts in succession matters is conferred by section 48 of the Law of Succession Act. Where a court has jurisdiction to issue and confirm a grant, it equally has jurisdiction to revoke it under section 76. 20. In re Estate of Ndolo Muthoka (Deceased) (supra), the Court held that jurisdiction to grant necessarily carries with it jurisdiction to revoke. The revocation proceedings were therefore properly before the trial court. Orders affecting titles 21. Section 80(1) of the Law of Succession Act provides that a revoked grant is deemed never to have had effect. 22. In re Estate of G.K.K (Deceased) (supra), the Court held that revocation nullifies all transactions founded on the grant. Orders affecting titles issued pursuant to a revoked grant are therefore consequential to succession jurisdiction and do not fall within the exclusive remit of the Environment and Land Court. 23. This position accords with the findings in Miscellaneous Application No. E015 of 2025, which I adopt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/752/eng@2026-01-29 3

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Appellate interference 24. An appellate court will only interfere with a lower court’s decision where there is misdirection in law or fact, or where the decision is plainly wrong. 25. The learned Magistrate found that the grant had been obtained without disclosure of all beneficiaries, a matter falling within section 76(a) and (b) of the Act. No error of principle or misapprehension of evidence has been demonstrated. 26. I therefore find no basis for appellate interference. Disposition 27. For the foregoing reasons, the Court hereby orders as follows: 1. The appeal is found to be devoid of merit and is hereby dismissed. 2. The Ruling delivered on 13th August 2025 Keroka MCSUCC E019 of 2023, is hereby afirmed. 3. Costs of the appeal shall be borne by the Appellant. DELIVERED AT NYAMIRA THIS 29TH DAY OF JANUARY 2026 WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Terer For Appellant - Mr. Sagwe for S.M.Sagwe & Co. Advocates For Respondent - Mr. Ogari for B.N.Ogari & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/752/eng@2026-01-29 4

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