High Court 11037 of 2026

SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT 1. This is a first appeal arising from the ruling of Hon. Robert Mobisa, Senior Principal Magistrate, delivered on 24 th July 2024 in Winam Senior Principal Magistrate's Court Succession Cause No. 34 of 2020. In the impugned ruling, the learned magistrate dismissed the Appellant's Chamber Summons dated 12th February 2024 in which she sought, among other orders, the revocation or annulment of the Grant of Letters of Administration Intestate and the Certificate of Confirmation of Grant issued in the succession cause, cancellation of the resultant registration of land parcel No. Kisumu/Kapuonja/2155 in the Respondent's name, and restoration of the property to the estate of the deceased. 2. The application before the subordinate court was supported by the affidavit of the Appellant, Teresa Atieno Oburu, who described herself as the widow of the deceased, Walter Oburu Osino, and the administrator of his estate pursuant to a Grant of Letters of Administration Intestate issued in Kisumu Chief Magistrate's Court Succession Cause No. 640 2|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT of 2017. She deponed that the deceased died on 1 st February 2017 and that following his demise she petitioned for letters of administration in respect of his estate. She asserted that her succession cause was instituted before the Respondent commenced the proceedings culminating in Succession Cause No. 34 of 2020. 3. The Appellant further deponed that notwithstanding the existence of the earlier succession proceedings, the Respondent subsequently instituted citation proceedings and thereafter petitioned for a grant of representation. She maintained that the Respondent failed to disclose the existence of Kisumu CM Succession Cause No. 640 of 2017 and further alleged that there existed two different death certificates relating to the deceased bearing different serial particulars. According to the Appellant, those matters demonstrated that the grant issued to the Respondent had been obtained through concealment of material facts. She also disputed the Respondent's alleged status as a creditor of the estate, contending that the sale agreement dated 26 th 3|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT January 2017, upon which the Respondent's claim was founded, was neither genuine nor executed by the deceased. 4. The Appellant further challenged the authenticity of the sale agreement, contending that it contained material inconsistencies and falsehoods. In particular, she asserted that although the agreement stated that Kshs.50,000 had been supplied in the form of building materials for construction of the matrimonial house, the said house had in fact been constructed in 2003; that the agreement falsely represented that the deceased had obtained the consent of all his family members to dispose of the property; and that the portion allegedly sold was described as vacant despite accommodating the family's matrimonial home. She consequently maintained that the agreement was a forgery and incapable of conferring upon the Respondent the status of a creditor of the estate. 5. The Appellant further averred that she had never been served with the citation proceedings and denied the Respondent's assertion that the citation had been served 4|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT upon her. She consequently prayed that the grant and certificate of confirmation of grant be revoked, the resultant registration of land parcel No. Kisumu/Kapuonja/2155 be cancelled, and the register be rectified to restore the property to the estate of the deceased so that the Respondent's determined in alleged claim as the succession a creditor could be proceedings she had previously instituted. 6. The Respondent opposed the application by filing Grounds of Opposition dated 11th April 2024 contending, inter alia, that the application was misconceived, frivolous, vexatious and an abuse of the court process; that it had been overtaken by events; that the court was functus officio; that the application was fatally defective; and that no sufficient grounds had been established to warrant the grant of the orders sought. 7. Upon considering the application and the parties' rival submissions, the learned magistrate held subordinate court lacked jurisdiction to 5|Page that the entertain an A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT application for revocation of grant under Section 76 of the Law of Succession Act, relying principally on In the Matter of the Estate of Makali Nzyoka (Deceased) [2004] eKLR. The court further held that the Appellant, having described herself as an interested party, ought first to have sought leave to be enjoined in the succession proceedings before filing the application. Consequently, the court found the application incompetent and dismissed it with costs. The Appeal 8. Aggrieved by the ruling of the learned trial magistrate, the Appellant preferred the present appeal vide a Memorandum of Appeal dated 30th July 2024 setting out the following grounds of appeal: (a) The learned magistrate erred in law in finding that it lacked the Jurisdiction to annul the grant. (b) on The learned magistrate erred in law by placing reliance a legal precedent that was speaking to the interpretation of Section 76 of the Law of Succession Act 6|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT before the amendments thereto and to the Magistrates' Court Act 2015 which specifically now gives jurisdiction to the Magistrates' Court to deal with applications for annulment of grant. (c) The learned magistrate further erred in law in applying the provisions of the Civil Procedure Act regarding the joinder of parties when no such provisions are imported in the Probate and Administration Rules. (d) The learned magistrate otherwise erred in law to find the Applicant now Appellant was improperly before him. 9. The Appellant consequently prays that the appeal be allowed, the ruling of the subordinate court delivered on 24 th July 2024 be set aside, and the Appellant's Chamber Summons dated 12th February 2024 be allowed with costs. The Appellant’s Submissions 10. The Appellant filed written submissions dated 24 th June 2025 through learned counsel, who condensed the four grounds of appeal into two broad issues for determination, 7|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT namely whether the subordinate court possessed jurisdiction to entertain an application for revocation or annulment of a grant issued by it, and whether a person seeking revocation of grant must first obtain leave to participate in the proceedings as an interested party before invoking the provisions of section 76 of the Law of Succession Act. 11. On the first issue, counsel submitted that the learned magistrate misdirected himself in declining jurisdiction by relying on In the Matter of the Estate of Makali Nzyoka (Deceased) [2004] eKLR, a decision rendered prior to the enactment of the Magistrates' Courts Act, 2015 and the consequential amendments to Section 48 of the Law of Succession Act. Counsel amendments fundamentally argued that altered the the statutory jurisdictional framework governing succession proceedings by conferring jurisdiction upon magistrates' courts, within their pecuniary limits, to exercise the powers conferred under the Law of Succession Act, including the power to revoke or annul grants issued by those courts. It was therefore submitted 8|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT that the authority relied upon by the learned magistrate no longer represented the current legal position. 12. To reinforce that argument, counsel relied on Musine v Osamo (Sued as Co-administrator of the Estate of Stephen Osamo (Deceased)) (Miscellaneous Application E012 of 2022) [2023] KEHC 20217 (KLR), in which the High Court observed that prior to the coming into force of the Magistrates' Courts Act, 2015, subordinate courts lacked jurisdiction to revoke grants issued by them, but that the legal position changed following the amendment of section 48 of the Law of Succession Act. Counsel submitted that the decision correctly interpreted the current statutory framework and demonstrated that the learned magistrate erroneously declined jurisdiction. 13. Counsel further submitted that the learned magistrate erred in law by holding that the Appellant ought first to have sought leave to be enjoined as an interested party before filing the application for revocation of grant. It was argued that neither Section 76 of the Law of Succession Act nor 9|Page A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT Rule 44 of the Probate and Administration Rules prescribes such a procedural requirement. Counsel maintained that section 76 expressly permits "any interested party" to move the court for revocation of grant and that the Appellant, being both the widow of the deceased and the holder of an earlier grant of representation, had the requisite standing to institute the application without first seeking leave. 14. It was further submitted that the learned magistrate improperly imported provisions of the Civil Procedure Rules into succession proceedings. Counsel argued that Rule 63 of the Probate and Administration Rules expressly limits the application of the Civil Procedure Rules to specifically enumerated Orders, and that the provisions governing joinder of parties under Order 1 are not among those imported into probate proceedings. Reliance was placed on In the Matter of the Estate of Evans Kamau Gatiba (Deceased) [2013] eKLR for the proposition that succession 10 | P a g e proceedings are governed by the Law A.ITHUKU – JUDGE of

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT Succession Act and the Probate and Administration Rules except where Rule 63 expressly incorporates provisions of the Civil Procedure Rules. 15. Counsel therefore urged the Court to find that the learned magistrate misapprehended both the applicable statutory framework and the procedural law governing succession proceedings, thereby arriving at an erroneous conclusion that the application was incompetent. The Court was accordingly invited to allow the appeal, set aside the ruling of the subordinate court, and remit or determine the Appellant's application on its merits. The Respondent’s Submissions 16. The Respondent opposed the appeal through written submissions dated 21st July 2025, urging the Court to uphold the ruling of the learned magistrate. Counsel submitted that jurisdiction is the foundation upon which every judicial proceeding rests and that where a court finds that it lacks jurisdiction, it must immediately down its tools. In support of that proposition, reliance was placed upon Owners of the 11 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR. 17. The Respondent submitted that applications for revocation or annulment of grant under Section 76 of the Law of Succession Act, read together with Rule 44 of the Probate and Administration Rules, fall within the jurisdiction of the High Court. It was therefore argued that the learned magistrate correctly appreciated the applicable legal position in declining jurisdiction and dismissing the application. 18. The Respondent further submitted that, in any event, the learned magistrate had become functus officio upon issuing and confirming the grant and was therefore precluded from reopening the succession proceedings. Counsel additionally contended that the Appellant's prayer seeking cancellation of the registration of land parcel Kisumu/Kapuonja/2155 raised issues relating to title to land, which fall within the exclusive jurisdiction of the Environment 12 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT and Land Court established under Article 162(2)(b) of the Constitution. 19. On the question of the Appellant's participation in the proceedings, the Respondent submitted that the Appellant was not a party to Succession Cause No. 34 of 2020 and could not competently seek substantive relief therein without first obtaining leave to be joined as an interested party. Reliance was placed on Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR and Law Society of Kenya v Centre for Human Rights and Democracy & 12 Others [2014] eKLR, which counsel cited for the general principles governing joinder of interested parties in judicial proceedings. 20. The Respondent lastly submitted that the present appeal was incompetent for having been instituted without leave of the court. It was argued that the Appellant had not demonstrated any statutory right of appeal against the impugned ruling and, in the absence of leave, the appeal 13 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT ought to be struck out. On those grounds, the Respondent urged the Court to dismiss the appeal with costs. Analysis and Determination 21. This being a first appeal, this Court is obligated to reconsider and re-evaluate the material that was placed before the subordinate court and draw its own independent conclusions while bearing in mind that, unlike the trial court, it neither saw nor heard the parties. Consequently, although this Court must accord due allowance to the findings of the trial court, it is not bound by those findings where they are unsupported by the evidence or are founded upon an erroneous appreciation of the law. This duty has long been settled in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, where the former Court of Appeal for East Africa held that a first appellate court is under a duty to reconsider the evidence, evaluate it itself and draw its own conclusions, while bearing in mind that it has neither seen nor heard the witnesses. The same principle was reiterated in Peters v Sunday Post Ltd [1958] EA 424 and more 14 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT recently by the Court of Appeal in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR. 22. I have carefully considered the Record of Appeal, the impugned ruling, the Memorandum of Appeal and the rival submissions by learned counsel. Although the Appellant advanced four grounds of appeal, those grounds substantially raise two principal complaints against the impugned ruling. The first concerns whether the learned magistrate correctly declined jurisdiction to entertain the Appellant's application for revocation or annulment of grant. The second concerns whether the learned magistrate properly held that the Appellant was required to first seek leave to participate in the succession proceedings before invoking Section 76 of the Law of Succession Act. 23. Before addressing the substantive grounds of appeal, I find it necessary to briefly dispose of an issue raised by the Respondent in his written submissions, namely, that the 15 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT present appeal is incompetent for having been instituted without leave of the Court. (a) Whether the appeal is incompetent for want of leave 24. Act The Respondent submitted that the Law of Succession does not envisage appeals from orders of the subordinate court as of right and that the Appellant ought to have first sought leave before lodging the present appeal. The Respondent, however, did not cite any statutory provision or legal authority in support of that proposition. 25. The right of appeal is purely statutory and exists only where it is conferred by the Constitution or legislation. It is equally settled that where Parliament intends an appeal to lie only with leave, it expressly says so. Conversely, where no such limitation is prescribed, the appellate jurisdiction conferred by statute may be invoked as of right. Accordingly, the question for determination is whether an appeal arising from a decision of a magistrate exercising jurisdiction under 16 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT the Law of Succession Act requires prior leave before it may be entertained by the High Court. 26. The jurisdiction of magistrates' courts in succession matters is conferred by section 48 of the Law of Succession Act, as read together with Section 23 of the Magistrates' Courts Act, 2015. Appeals from subordinate courts to the High Court are generally governed by the Civil Procedure Act unless expressly excluded by statute. Significantly, neither the Law of Succession Act nor the Probate and Administration Rules contains any provision requiring leave before an appeal determination of may a be preferred magistrate's court against in a final succession proceedings. Equally, the Respondent did not cite any statutory provision imposing such a requirement. Instead, the submission was advanced as a general proposition without identifying the legal foundation upon which it rested. 27. Section 50(1) of the Law of Succession Act provides as follows: 17 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT “An appeal shall lie to the High Court in respect of any order or decree made by a Resident Magistrate in respect of any estate and the decision of the High Court thereon shall be final.” The provision confers a statutory right of appeal from any order or decree made by a Resident Magistrate in succession proceedings. Unlike subsection (2), which expressly requires prior leave in respect of appeals involving a point of Muslim law from the Kadhi's Court to the Court of Appeal, subsection (1) contains no requirement whatsoever that leave be obtained before an appeal is preferred to the High Court. 28. It is a cardinal principle that a court's jurisdiction cannot be limited by implication. Where Parliament intends to restrict the right of appeal, it does so in express terms. In the absence of any provision requiring leave, this Court is unable to import such a requirement through judicial interpretation. To do so would amount to imposing a procedural fetter that the Legislature itself did not enact. 18 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT 29. Consequently, I find the Respondent's contention to be without merit and proceed to determine the appeal on its merits. (b) Whether the learned magistrate erred in holding that the subordinate court lacked jurisdiction to entertain the Appellant's application for revocation or annulment of grant 30. The gravamen of the appeal is whether the learned magistrate correctly declined jurisdiction to entertain the Appellant's application for revocation or annulment of the grant issued in Succession Cause No. 34 of 2020. The Appellant contends that the learned magistrate misapprehended the law by relying on judicial authorities that interpreted the Law of Succession Act prior to the enactment of the Magistrates' Courts Act, 2015 and the consequential amendment of section 48 of the Law of Succession Act. The Respondent, on the other hand, supports 19 | P a g e the impugned ruling and maintains that A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT applications for revocation or annulment of grants fall within the exclusive jurisdiction of the High Court. 31. Jurisdiction is the authority conferred upon a court by the Constitution or statute to hear and determine a dispute placed before it. It is neither derived from the consent of the parties nor assumed by judicial innovation. A court acting without jurisdiction acts in vain, and any proceedings conducted in excess of jurisdiction are a nullity. It is for that reason that the question of jurisdiction must be determined at the earliest opportunity before the court embarks on the merits of the dispute. These principles have long been settled by the decisions in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1 and Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others. 32. The starting point is therefore the statutory framework governing succession proceedings. Section 47 of the Law of Succession Act vests jurisdiction in the High Court to entertain any application and determine any dispute under 20 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT the Act and to pronounce such decrees and make such orders as may be expedient. It provides as follows: “The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.” 33. That provision, however, does not stand in isolation. It must be read together with section 48 of the Act, which specifically provides for the jurisdiction of magistrates' courts in succession matters. Section 48(1) provides as follows: “Notwithstanding any other written law which limits jurisdiction, but subject to the provisions of section 49, a magistrate shall have jurisdiction to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as 21 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT may be expedient in respect of any estate the gross value of which does not exceed the pecuniary limit prescribed under section 7(1) of the Magistrates' Courts Act, Act (No. 26 of 2015).” 34. A plain reading of the foregoing provision reveals two significant changes introduced by Parliament. First, the jurisdiction of magistrates' courts is no longer confined to the issuance of grants of representation. Secondly, and more importantly, Parliament deliberately employed broad and unqualified language by providing that a magistrate shall have jurisdiction "to entertain any application and to determine any dispute under this Act and pronounce such decrees and make such orders therein as may be expedient." The phrase "any application" is all- encompassing and, absent an express statutory limitation, necessarily includes an application brought under Section 76 of the Act for the revocation or annulment of a grant. Significantly, the previous statutory exclusion of applications under Section 76 was removed by the 2015 amendment. 22 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT 35. The learned magistrate, however, relied on In the Matter of the Estate of Makali Nzyoka (Deceased) [2004] eKLR in holding that only the High Court could entertain an application for revocation of grant. With respect, that reliance failed to appreciate that the decision was rendered under a materially different statutory regime. At the time that decision was made, section 48 of the Law of Succession Act did not confer upon magistrates' courts the broad jurisdiction they presently enjoy. The ratio decidendi of that decision was therefore founded upon statutory provisions that have since been substantially amended. While the decision correctly reflected the law as it then stood, it cannot be applied without regard to the subsequent legislative changes brought about by section 23 of the Magistrates' Courts Act, 2015. 36. The Respondent nevertheless contended that Rule 44 of the Probate and Administration Rules reserves jurisdiction over applications for revocation exclusively to the High Court. Rule 44(1) provides: 23 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT "Where any person interested in the estate of the deceased seeks pursuant to the provisions of section 76 of the Act to have a grant revoked or annulled he shall, save where the court otherwise directs, apply to the High Court for such relief by summons in Form 107 and, where the grant was issued through the High Court, such application shall be made through the registry to which and in the cause in which the grant was issued or, where the grant was issued by a resident magistrate, through the High Court registry situated nearest to that resident magistrate's registry." 37. At first glance, Rule 44(1) appears to support the Respondent's contention. However, statutory interpretation requires that subsidiary legislation be read harmoniously with the parent Act from which it derives its authority. The Probate and Administration Rules are made pursuant to the Law of Succession Act and cannot enlarge, diminish or contradict jurisdiction expressly conferred by Parliament. Where there is an apparent inconsistency between an Act of Parliament and subsidiary legislation, the Act prevails. 24 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT Subsidiary legislation must yield to the parent statute to the extent of the inconsistency. 38. It is noteworthy that while Section 48 of the Law of Succession Act was substantially amended by Section 23 of the Magistrates' Courts Act, 2015, Rule 44 has remained in its original form. The Rule still reflects the statutory position that existed before the 2015 amendments, when applications for revocation were indeed made to the High Court. Parliament, however, subsequently removed the statutory limitation on the jurisdiction of magistrates' courts by empowering them to entertain "any application" under the Act within their pecuniary jurisdiction. To continue interpreting Rule 44 literally, without regard to the subsequent amendment of Section 48, would effectively reintroduce a limitation that Parliament deliberately removed. 39. In my considered view, Rule 44 is properly construed as prescribing the procedure for applications for revocation or annulment of grant, and not as limiting the jurisdiction 25 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT expressly conferred upon magistrates' courts by Section 48 of the Act. To hold otherwise would elevate subsidiary legislation above the parent statute and defeat the legislative intention underlying the 2015 amendments. 40. This interpretation finds support in Musine v Osamo (Sued as Co-administrator of the Estate of Stephen Osamo (Deceased)) [2023] KEHC 20217 (KLR), where the High Court observed that prior to the amendment of Section 48, subordinate courts lacked jurisdiction to revoke grants issued by them, but that the amendment fundamentally altered that legal position by extending such jurisdiction to magistrates' courts within their pecuniary limits. I agree with that interpretation because it accords with the plain language of the amended statute and gives effect to Parliament's manifest intention. 41. I therefore find that the learned magistrate fell into error in declining jurisdiction on the basis of authorities decided under the former statutory regime and in treating Rule 44 of the Probate and Administration Rules as limiting 26 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT jurisdiction notwithstanding the clear provisions of the amended section 48 of the Law of Succession Act. The first and second grounds of appeal consequently succeed. (c) Whether the learned magistrate erred in holding that the Appellant was required to first seek leave to participate in the succession proceedings before invoking section 76 of the Law of Succession Act 42. The third and fourth grounds of appeal challenge the learned magistrate's finding that the Appellant was improperly before the court because she had not first sought leave to be enjoined as an interested party in Succession Cause No. 34 of 2020 before filing the application for revocation or annulment of grant. The Appellant contends that neither the Law of Succession Act nor the Probate and Administration Rules imposes such a requirement, while the Respondent maintains that, not being a party to the proceedings, the Appellant could not competently seek substantive relief without first obtaining leave to participate therein. 27 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT 43. The point of departure is Section 76 of the Law of Succession Act, which provides in material part: “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; …” 44. The language employed by Parliament is deliberate and expansive. The right to move the court for revocation or annulment is conferred upon "any interested party." The Act 28 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT does not qualify that expression by requiring such a person to first be joined as a party to the succession proceedings, nor does it prescribe any preliminary application for leave before the jurisdiction under section 76 may be invoked. Had Parliament intended to impose such a procedural prerequisite, nothing would have been easier than to expressly provide for it. 45. Equally instructive is Rule 44 of the Probate and Administration Rules, which prescribes the procedure for applications under section 76. Rule 44(1) provides: "Where any person interested in the estate of the deceased seeks pursuant to the provisions of section 76 of the Act to have a grant revoked or annulled he shall, save where the court otherwise directs, apply... by summons..." The Rule mirrors the language of section 76 by referring to "any person interested in the estate." Significantly, neither Rule 44 nor any other provision of the Probate and Administration Rules requires such a person to first apply to 29 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT be enjoined in the succession cause before filing the summons for revocation. 46. The learned magistrate nevertheless held that because the Appellant described herself as an interested party, she ought first to have sought leave to participate in the proceedings before seeking substantive relief. With respect, I am unable to agree with that conclusion. It appears to have been founded on principles governing joinder of parties under the Civil Procedure Rules rather than on the special statutory regime established under the Law of Succession Act. 47. Succession proceedings are sui generis. Although certain provisions of the Civil Procedure Rules are imported into probate practice, their application is limited by Rule 63(1) of the Probate and Administration Rules, which provides: "Save as in the Act or in these Rules otherwise provided... the following provisions of the Civil Procedure Rules, namely Orders 5, 10, 11, 19, 26, 40, 45 and 50, together with the 30 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules." A plain reading of Rule 63 reveals that Order 1 of the Civil Procedure Rules, which governs the joinder, addition and substitution of parties, is not among the provisions imported into succession proceedings. The omission is significant. It demonstrates that the Legislature intentionally limited the application of the Civil Procedure Rules in probate matters to the Orders expressly specified. 48. into It follows that the learned magistrate erred in importing succession proceedings a procedural requirement founded on provisions of the Civil Procedure Rules that are not applicable under Rule 63. The Appellant's application was expressly anchored on section 76 of the Law of Succession Act and Rule 44 of the Probate and Administration Rules. Those provisions confer upon any interested party the right to seek revocation or annulment of a grant and prescribe the procedure for doing so. They do 31 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT not require the applicant to first seek leave to be joined in the proceedings. 49. Moreover, the record discloses that the Appellant asserted that she is the widow of the deceased and the administrator of his estate by virtue of a grant issued in Kisumu CM Succession Cause No. 640 of 2017. Whether those assertions are ultimately proved, and whether they justify revocation of the Respondent's grant under Section 76, are matters that fall for determination on the merits of the application. They are not questions that can be resolved by declining to hear the application altogether. In my view, once the Appellant asserted an interest recognised under Section 76, the proper course was for the court to hear the application, receive the parties' evidence and determine whether the statutory grounds for revocation had been established. 50. In the premises, I find that the learned magistrate erred in law in holding that the Appellant was improperly before 32 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT the court for want of prior leave to participate in the succession proceedings. 51. Accordingly, I find that the appeal is meritorious and make the following orders: (a) The ruling and order of the Senior Principal Magistrate delivered on 24th July 2024 in Winam Senior Principal Magistrate's Court Succession Cause No. 34 of 2020 are hereby set aside. (b) The Appellant's Chamber Summons dated 12 th February 2024 is hereby reinstated for hearing and determination on its merits. (c) The file shall be remitted to the Chief Magistrate, Winam Law Courts, for allocation to a magistrate of competent jurisdiction, other than the learned magistrate who delivered determination the of impugned the ruling, Chamber for Summons hearing and dated 12 th February 2024. 33 | P a g e A.ITHUKU – JUDGE

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SUCCESSION APPEAL NO. E004 OF 2024- JUDGEMENT (d) the Given that the appeal succeeds on questions of law and substantive dispute remains pending before the subordinate court, each party shall bear his or her own costs of this appeal. It is so ordered. Dated, Signed and Delivered at Kisumu this 17 th day of July 2026 Hon. Alex. K. ITHUKU. JUDGE DELIVERED ELECTRONICALY Ms. Atieno -APPELLANT In Person - RESPONDENT Mr. Gitonga - Court Assistant Hon. Alex. K. ITHUKU. JUDGE 34 | P a g e A.ITHUKU – JUDGE

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