Musenya Wambua v Dickson Wambua & 2 others

i. The applicants were not represented in the succession proceedings in the lower court. ii. The suit was instituted at the Machakos High Court before being transferred to the Kitui High Court and did not thus have a lower court file at Kitui for the Court to study. f. The true position is that there was a lower court file as the suit was originally filed at the Kitui Chief Magistrate Court and allocated Succession Cause 101 of 2005. g. Most importantly, the applicants were represented by counsel i.e M/s Kilonzi & Company Advocates. The firm of M/s Mulu & Company Advocates was on record for the 1st and 3rd house. h. The application for revocation of grant was also instituted through Advocates who were not informed. i. The court was therefore not privy to all the requisite facts when the orders were made on 22nd November 2022. j. The orders sought herein are necessary for the ends of justice to ensure the revocation application is heard on merit. 2. I have considered the application. The record shows that the orders issued on 22/11/2022 revoked a grant of letters of administration issued on 10/7/2012 and set aside all the consequential orders. The Judge further ordered that a fresh grant be issued to Musenya Wambua and Mwangi Nzomo who were also granted leave to apply for the confirmation grant before the expiry of the statutory period six (6) months owing to the age of the cause. 3. The orders were issued pursuant to summons dated 14/11/2013 which was brought under Section 73 and 76 of the Law of Succession Act and Rule 44(1) of the Probate and Administration Rules. The summons was based on the grounds that Musangi Nzomo and Kanini Kallo had not signed consents to the confirmation of the said grant and were not provided for in the distribution of the estate as provided under the law. It was also contended that the grant was obtained fraudulently by concealment of the process from the beneficiaries. That the administrators had unjustly distributed all the assets of the estate amongst themselves leaving out the beneficiaries. 4. That the Magistrate’s court had no jurisdiction to revoke the grant. The application was dated 14/11/2013 and was supported by the affidavit of Musangi Nzomo who claimed to be an adult child and a beneficiary of the estate of the deceased herein. That himself and his sister were left out throughout the proceedings and did not sign the consent on the distribution of the estate neither were they provided for during the distribution. That the confirmation of grant was done secretly with intention to conceal and prevent them from benefiting from their father’s estate. That they stood to suffer if the grant was not revoked. 5. This application was not opposed by the respondents and Interested Parties. I have considered the application. Section 47 of the Law of Succession Act gives the High Court jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and issue other orders as may be expedient. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4301/eng@2026-02-11 2

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6. The application which was before the Judge was under Section 76 of the Law of Succession Act which provides 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) 7. (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.” The Act does not provide for reinstatement of a grant of letters of administration that has been revoked. The Judge revoked the grant on the ground that some of the beneficiaries of the estate of the deceased were not catered for. Section 71(2) of the Law of Succession Act in its proviso states that: “ Provided that in cases of intestacy, the grant of letters of Administration shall not be confirmed until the court is satisfied as to the respective shares of all persons beneficiary entitled and when confirmed the grant shall specify all such person and their respective shares.” 8. A grant that has failed to later for all the beneficiaries entitled to the estate of a deceased person, is only good for revocation as it is defective in substance and for concealment from the court of something material. Under Section 76 of the Law of Succession Act (supra) a court can revoke a grant on its own motion. The applicant’s in the application for revocation of grant relied on the grounds that the beneficiaries Musangi Nzomo and Kanini Kailo had not signed consents to the confirmation of the grant and had not been provided for in the distribution of the estate in accordance with the law. That the grant was obtained fraudulently by concealment of the process from the beneficiaries and the administrators have unjustly distributed all the assets of the estate among themselves leaving out other beneficiaries. These were sufficient grounds for the court to revoke the grant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4301/eng@2026-02-11 3

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9. In Re Estate of Mukhobi Namoya it was stated that: “ Revocation may be warranted in three broad circumstances where the process of obtaining the grant was fundamentally flawed, where the administrators have failed in their duties post grant or where subsequent circumstances have rendered the grant in-operative.” 10. The ground upon which the grant was set aside fell within the ambit of Section 76 Supra of the Law of Succession Act. Review is provided under Order 45 Rule (1) of the Civil Procedure Rules and deals with application for review of a court’s decree or order allowing a person aggrieved by the decision to seek review. The party seeking review must demonstrate that there is an error apparent on the face of the record, or has discovered an important matter of evidence which was not in his possession at the time the decree or order was passed or would not have come into his possession even after exercise of due diligence. The Review may also be ordered for any other sufficient reason. 11. Order 45 Rule 1 of the Civil Procedure Rules provides that: “ Any person considering himself aggrieved— 12. a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” The application for review of grant has not demonstrate any ground to warrant review of the order. The contention that some of the properties forming the estate have been sold is not sufficient ground to warrant review of the order. The interest of justice demands that those beneficiaries who were not considered during the distribution of the estate should be considered. No valid reason has been given to warrant the review of the order. The fact that the grant was revoked by a competent court is a testimony that it was defective for failing to consider all the beneficiaries and for concealing from the court something that was material to the case. The law allows the court to revoke a grant where there are sufficient ground such revocation is sufficient evidence material to proof that it was defective among other reasons under Section 76 of the Law of Succession Act. A court cannot be called upon to reinstate a grant that was defective in the first place. To reinstate the grant would mean that the respondents would be denied a share of the estate and yet they are lawful beneficiaries. The interested parties who claim to be bonafide purchasers are protected under Section 93(1) of the Law of Succession Act as it provides that validity of a transfer is not affected by revocation of representation. It provides: “ A transfer of any interest in immovable or moveable property made to a purchaser either before or after commencement of this Act by a person to whom representation has been granted shall be valid not withstanding any subsequent revocation or variation of the grant either before or after the commencement of this Act.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4301/eng@2026-02-11 4

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13. The fact that the interested parties purchased land from the estate is not a bar to revocation of grant. I find that the applicant has not demonstrate any of the grounds for the review of the order of revocation of the grant. The application is without merits and is dismissed. DATED, SIGNED AND DELIVERED AT KITUI THIS 11TH DAY OF FEBRUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4301/eng@2026-02-11 5

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