Benard K Marindany v Pius Too & 1 other

estate. That the 2nd Objector was entitled to 0.29 acres of the said portion having purchased the same, taken possession and made significant developments for a cumulative period of more than 16 years. 4. The Objectors stated that they would be prejudiced as Zamari Chepkemoi Rogito and Richard Kipkorir Korgoren will disinherit them and unjustly retain portions they had willingly sold. 5. At the time of writing this Ruling, the Petitioner had not filed his response. The Objectors filed an Affidavit of Service dated 26th June 2026 informing the Petitioner of the Ruling date. I am satisfied that the Petitioner was aware of the Ruling date but failed to put in his response as directed by this court. Additionally, neither party filed their written submissions. 6. I have gone through the record and the present Notice of Motion Application dated 2ne June 2026 and the only issue for my determination was whether the Grant dated 26th October 2023 and confirmed on 22nd July 2025 should be revoked. 7. Section 76 of the Law of Succession Act provides: 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- (e) (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 that the grant has become useless and inoperative through subsequent circumstances. 8. The Objectors stated that the Petitioner concealed from the court the fact that the 1st Objector was entitled to 0.42 acres from the share of Zamari Chepkemoi Rogito as she had sold the same to William Rogito (deceased). Further that the 2nd Objector was entitled to 0.29 acres of the share of Richard Kipkorir Korgoren as she had purchased the same from him and made developments on the said parcel for a period of approximately 16 years. 9. From my observation of the above, Richard Kipkorir Korgoren, Zamari Chepkemoi Rogito and Rosa Chepkemoi Rogito (2nd Petitioner) were all beneficiaries of the deceased’s estate and the fact that the 2nd Petitioner admitted to having purchased a portion of Richard Kipkorir Korgoren’s parcel 16 years ago indicated that the said beneficiaries had intermeddled with the deceased’s estate. This meant that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10871/eng@2026-07-20 2

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the said transactions between the beneficiaries were void ab initio. This is backed by section 45 (1) of the Law of Succession Act which provides: Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. 10. In any event, matters of land ownership such as the present one can only be determined by the Environmental and Land Court and not this court. This court’s position has always been that the main purpose of a probate court is to distribute the free estate of the deceased. From the Objectors’ contentions, the deceased’s estate is not free as its ownership was contested. 11. Flowing from the above, it is clear that this court lacks jurisdiction to determine the present Application and consequently lays down its tools. 12. In the end, the Notice of Motion Application dated 2nd June 2026 is struck out with no orders as to costs. RULING DELIVERED, DATED AND SIGNED AT BOMET THIS 20TH DAY OF JULY, 2026. ........................................... HON. JULIUS K. NG’ARNG’AR JUDGE Ruling Delivered in the presence of; Siele/Zachary – Court Assistants Nandi for Objectors/Applicants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10871/eng@2026-07-20 3

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