High Court 4226 of 2026

c. Plot No 28/XXIX; d. Plot No 279/XXI; e. Plot Nos 4, 5, 12 I Group V, Takaungu Kilifi; and f. Plot No 5018, Mazrui Reserve No 1. 4. The application was heard on 18th October 2023. The Court allowed the same. A grant was issued on 19th October 2023 to SSAB. 5. The applicant filed a summons for grant dated 19th February 2025, vide which he sought to have details regarding what was originally Plot No 78/XX rectified. The application was allowed on 19th March 2025. A rectified certificate of confirmation of grant was issued on the said date. 6. Fatemi Investments Ltd filed summons for revocation of grant dated 18th September 2028 in which they sought to have the grant issued to SSAB revoked on the ground that it was issued fraudulently upon concealment of material information and that the proceedings were defective in substance as the administrator sought substitution/replacement of a deceased administrator contrary to the provisions of the law. It was urged that there was no evidence that KBMBS was the same person as LKSSJ and that the grant was issued with the participation of the descendants of LKSSJ, and not those of ABMBS. 7. It was urged that the administrator, using the grant issued herein, had proceeded to effect changes in the land registered in his favour and even commenced eviction proceedings in several cases, one of which was ELC No E008 of 2025. 8. In the affidavit in support of Murtaza Dungawalla, Chairman of the applicant, Fatemi Investments Ltd, averred that the company was in occupation of Plot No Mombasa/Block XX/335. 9. The administrator/respondent objected to the application by filing a preliminary objection dated 30th September 2025 in which he deprecated the locus standi of the applicant, accused the applicant of abusing the Court process by filing the application in the wrong forum. It was urged that the summons was a collateral attack on the pending proceedings at the Environment and Land Court and that there was no basis for the allegations made. 10. The administrator also filed a replying affidavit in which he deposed that he was the Court-appointed administrator of the estates of Mohamed Bin Self, KBMBS, and ABMBS. He stated LKSSJ was the same person as KBMBS. In support of the said contention, he relied on his annexure “SSS-5”, which is the statutory declaration of LKJ, sworn on 30th September 2006. 11. The summons was canvassed by way of Written Submissions. The submissions of the applicant are dated 6th October 2025. 12. In the said submissions, it was urged that the process used to obtain the grant was defective insofar as a single grant was issued in respect of 3 estates, one of which has been fully administered. It was contended that there was no evidence that LKSSJ was one and the same person as KBMBS. Further, there was no evidence that the family of ABMBS consented to the application. 13. The applicant contended that it had locus to file the summons under section 76 of the Law of Succession Act. Counsel for the applicant urged that deceased administrators could not be substituted, but rather that the grant could be revoked and a new one issued to the administrators. 14. It was urged that there was no nexus between LKSSJ and KBMBS. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4226/eng@2026-02-27 2

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15. The Summons was opposed. The respondent’s submissions are dated 9th October 2025. The respondent identified issues for determination as being: 1. Whether this Court could entertain disputes regarding a lease or possession of land; 2. Whether the summons meets the threshold under section 76 of the Law of Succession Act; 3. Whether the applicant is a subtenant 4. Whether a defect was disclosed in the application, or there was a concealment of material information, and or fraud warranting revocation of the grant. 16. It was urged that the Probate Court could not determine issues regarding lease or possession of land. In support of the said contention, reliance was placed on the case of Owners of Motor Vessel Lilian “S” v Caltex Oil (K) Ltd [1989] eKLR. 17. Counsel submitted that a case for revocation of the grant had not been made out. It was urged that no fraud, concealment of material information, or defective proceedings had been shown. It was urged that allegations were being raised years later. Counsel contended that matters concerning tenancy arrangements fell outside of section 76(a) to (c) of the Law of Succession Act. 18. It was submitted that the applicant lacked locus standi to file the summons. Counsel urged that the interested party, as used in section 76 of the Law of Succession Act, did not apply to subtenants, but was limited to beneficiaries, dependents, and creditors. 19. Section 76 of the Law of Succession Act provides that “ 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 – 20. (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-(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 (e) that the grant has become useless and inoperative through subsequent circumstances. The applicant, Fatemi Investments Ltd, is a subtenant of a property forming part of the disputed estate. The respondents have submitted that, as subtenants, they have no locus standi to file the instant application. Is that the case? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4226/eng@2026-02-27 3

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21. In the case of Kibiwott v Bartocho & another [2025] KEHC 4725 (KLR), Nyakundi, J, stated as follows: “ In succession causes, persons who would be outright interested parties are beneficiaries, spouses, children, creditors and any other person who has a legal claim to an estate. From the application, the proposed interested party, Daniel Cheruiyot, claims to have purchased 2 Acres of land from the petitioner/respondent who is a beneficiary of the estate of the late Chebos Ruto. The purchase was made vide an agreement dated 11th May, 2010, with final payment completed on or about 28th June, 2016. This establishes that he has an identifiable stake in the proceedings as a person with a legal claim to part of the estate. Therefore, the proposed interested party has demonstrated a direct, substantial, and legally protectable interest in the subject matter of this litigation.” 22. Guided by the above decision. I am of the view that Fatemi Investments Ltd is indeed an interested party and that it has the locus standi as an interested party to file a summons for revocation of the grant. In my view, these proceedings have a direct bearing on their use and occupation of the property. Their interest is real and identifiable and is not remote. 23. Grounds for revocation of the grant were discussed by Musyoka, J, in re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR). In the said cause, the learned Judge made the following observations: “ 8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will, and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed, or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4226/eng@2026-02-27 4

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24. I note that the Court should be reluctant to revoke a grant unless very good grounds are shown. Mwita, J stated as follows on the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR): “ 13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a 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 interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” 25. I note that this Court issued a grant in respect of 3 estates in a single grant of representation. I further note that the administrator, though seeking to administer the estate of KBMBS, relied on documents of LKJ without producing evidence proving that the two names referred to one person and that that one person was an heir of the estate of Mohamed Bin Seif. There is no evidence that LKJ is the same person as KBMBS. The statutory declaration that was attached makes no mention of “K” whatsoever. Further, the proceedings herein begun in a Trust Cause filed in 1936, not a Succession Cause. Lastly, the procedure provided for in the Law of Succession Act for obtaining a grant was not followed in respect of any of the three estates. 26. I agree with counsel for the applicant that what the respondent did was to apply to substitute a deceased trustee/administrator. This is not permissible. I agree with the holding in Julia Mutune M’mboroki v John Mugambi M’mboroki, Gikundi M’mboroki, Linet Nthiori Ndingu & Naomi Gatimba [2016] KEHC 7023 (KLR) that: ‘I also think it is worth mentioning that the Law of Succession Act does not talk of substitution of administrator; it provides for making of a grant to another person or persons after revocation of grant or on the death of the administrator or on renunciation of right to apply or executorship, etc. A classic example is section 81 of the Law of Succession Act; that, where there is a continuing trust, a further grant to one or more persons has to be made by the court. There is absolutely no room of substitution of the deceased administrator under the Law of Succession Act. In my view, therefore, where the sole administrator is a natural person, and he or she dies, the grant becomes useless or inoperative by reason of subsequent event of his demise. I am aware that the Law of Succession Act does not define or say what constitutes ‘’the grant has become useless and inoperative through subsequent circumstances’’. But, in my opinion, death of an Administrator would be a sufficient reason to revoke a Grant for having become useless and inoperative due to subsequent demise of its holder. Accordingly, in such case, the proper procedure is to apply for revocation of grant of letters of administration under section 76(e) of the Law of Succession Act, on the reason that the grant has become useless and inoperative through subsequent circumstances, and a grant to be made to another person named in the application.’ 27. For the reasons that are apparent from the foregoing, it is my view that the grant issued in this cause was a product of a defective process. As rightly pointed out, the descendants of Azzah were not involved. 28. Having found as foregoing, I hold that the grant that this Court issued on 18th October 2023 should be revoked under section 76 of the Law of Succession Act for being a product of a defective process and also for being obtained by means of untrue allegation or fact essential in a point of law to justify the grant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4226/eng@2026-02-27 5

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29. 30. The orders that therefore commend themselves to me are the following: i. I revoke the grant issued on 18th October 2023; and ii. Each party shall bear his/her/its own costs. Orders accordingly. DATED AND SIGNED AT MOMBASA, THIS 27TH DAY OF FEBRUARY 2026. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Mrs. Akwana, for the Applicant; Mr. Munyori, for the Interested Party; Ms. Mulongo, holding brief for Mr. Obinju, for the Administrator; Mr. Hamisi – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4226/eng@2026-02-27 6

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