In re Estate Salim

HMS 3, copy of the letters of conrmed grant marked as HMS 4, copy of the chief’s letter dated 14th July, 2025 marked as HMS 5, copies of the Judgment and Orders issued on the 24th July, 2025 marked as HMS 6 and certied copy of the green card from the land registry marked as HMS 7. 5. The Petitioner/Respondent was duly served and an adavit of service dated 27th July, 2026, is on record. On the 29th July, 2026 the Petitioner/Respondent appeared in court and she conrmed to this Honourable court that she was duly served with the summons for revocation of grant intestate. She prayed the court for more time to respond in which the court granted her wish and directed that she les and serve her response within 14 days. The court slated the matter for inter-parties hearing on the 12th of August, 2026. On the said 12th of August, 2026 the Petitioner/Respondent failed to appear before the court and the matter proceeded ex-parte. 6. I have carefully considered the Application, the supporting adavit and the annexures presented by the Applicant and this Honourable Court frames the following as issues for determination: 1. Whether the Honourable court should revoke the grant issued on the 24th July, 2025. 2. Whether this Honourable court should set aside the Judgment and orders issued on the 24th July, 2025. 7. Being an un-defended Application, one would be inclined to give orders as prayed for but delity to the law demands that what the Applicant prays for is within the boundaries of what is just and acceptable with regards to the facts, the evidence and the law. I am therefore tasked with making a nding as to whether this court should grant the prayers sought by the Applicant. 8. The applicant herein invites the Honourable court to revoke the grant, judgment and/or orders issued by this Honourable Court on the 24th July, 2026 on the grounds that the Petitioner/Respondent obtained them through concealment of material facts. 9. Kadhis Courts in Kenya handle succession matters for Muslims under Islamic law. So they issue grants of probate/letters of administration for estates of deceased Muslims, just like the High Court does for other estates. 10. The power to revoke a grant comes from Section 76 of the Law of Succession Act Cap 160. Section 76 says a grant of representation, whether conrmed or not, may be revoked or annulled if the court decides, either: 11. a. The proceedings to obtain the grant were defective in substance b. The grant was obtained fraudulently by false statement or concealment of material facts c. It was obtained by an untrue allegation of a fact essential in law d. The administrator failed to apply for conrmation, proceed with administration, or le accounts e. The grant has become useless and inoperative through subsequent circumstances. It is a settled law that a person who approaches a court or a tribunal for a grant of a relief equitable or otherwise is under a solemn obligation to candidly disclose all the materials/important facts/ documents which have a bearing on the adjudication of the issues raised in the case. In other words, he or she owes a duty to the court to bring all the facts and refrain from concealing/suppressing any material facts within his or her knowledge which he or she could have known by exercising diligence expected of a person of ordinary prudence. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/20/eng@2026-08-20 2

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12. In R v Kensington income tax commissioner the court held that; if a party is found guilty of concealment of material facts or making an attempt to pollute pure stream of justice the court not only have the right but a duty to deny relief to that person. 13. The upshot is that the Petitioner/Respondent herein is guilt of material non-disclosure. Whether this Honourable court should revoke the grant and set aside the Judgment and the Orders issued on the 24th July, 2025. 14. Courts have the discretionary power to set aside ex parte judgment with the main aim being that justice should prevail. The Code of Civil Procedure (2) has illuminated the grounds for setting aside an ex parte decree and what constitute sucient cause for setting aside an ex parte judgment/decree. Essentially, setting aside an ex parte judgement is a matter of the discretion of the court. 15. In the case of Esther Wamaitha Njihia & two others v Safaricom Ltd (3) the court citing relevant cases on the issue held inter alia: “ The discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel v E.A. Cargo Handling Services Ltd. The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise to obstruct or delay the cause of justice…” 16. The fact that setting aside is a discretion of the court is not disputed. What is contested is whether the Applicant has demonstrated sucient cause to warrant the exercise of the court’s discretion in its favor. The Supreme Court of India in the case of Parimal v Veena observed that: “ Sucient cause” is an expression, which has been used in large number or statutes. The meaning of the word “sucient cause” is “adequate” or “enough”, in as much as may be necessary to answer the purpose intended. Therefore, the word “sucient” embraces no more than that which provides a platitude which when the act done suces to accomplish the purpose intended in the facts and circumstances existing in a case and duly examined from the view point of a reasonable standard of a curious man…” 17. To answer the question whether the action is excusable. On this, courts have come up with applicable principles and standards to consider in exercising judicial discretion. 18. Adverting back to the fact of the present case an order for revoking a grant and setting aside Judgment, decree and orders is not abstained on demand. The court has to satisfy itself on examination of all the evidence placed before it rstly, that there is indeed concealment of material facts. 19. It is my humble view that the Applicant has oered a candid and frank explanation as to why he wants the orders of 24th July, 2025 be set aside. The Respondent led a succession petition in relation to the estate of the Deceased herein, stating that she is the only heir of the deceased. The Court heard the Petition and delivered a Judgment in which the Petitioner/Respondent was declared the sole heir of the Deceased herein. 20. The Honourable court is now told substantively that the Applicant is a son of the Deceased herein and that the Deceased was also survived by a widow and two other children. The court is also told that the Petitioner/Respondent is not a child of the Deceased herein, in stead a maternal granddaughter of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/20/eng@2026-08-20 3

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21. Upon my perusal of the records of the court, I did nd that the Petitioner/Respondent moved this Honourable Court vide a Succession petition dated 14th July, 2025, and pleaded specically in para 4 that she is the only child surviving the Deceased herein. She attached an introduction letter from Mkoyo Assistant Chief dated 14th July, 2027 conrming the same. The said letter indicate that the deceased herein left only one dependent who is the Petitioner and that the Plot No. Kwale/Tiwi/1673 was registered under the name of the Deceased herein. 22. The court records show that on the said 24th of July, 2025 the Kadhis court in Kwale substantively dealt with the petition dated 14th July, 2025 and it made a determination on who the rightful heir was and equally determined and the proceeded to appoint the Petitioner/Respondent as administrator and vested the suit property in her. 23. The upshot is that the Applicant herein has convinced the Honourable court that the Petitioner/ Respondent falsely represented herself to the court as the sole heir of the deceased. That the Petitioner/ Respondent failed to disclose the existence of the widow and children of the deceased. Subsequently, the Respondent obtained a Judgment, grant and/or orders dated 24th July, 2025, through concealment of material facts and misrepresentation. The prayer for setting aside the orders is allowed. 24. Consequently, I make the following orders in disposing the Summons for revocation of grant application dated 25th June, 2026. a. That the ex-parte Judgement delivered on the 24th July, 2025 and all other consequential orders are hereby set aside and vacated. b. That the grant of representation issued on the 24th of July, 2025 to the Petitioner/Respondent in respect to the Estate of the Deceased be and hereby revoked. c. That the Applicant is at liberty to move ELC Court for the revocation and cancellation of the title deed issued in respect to Kwale/Tiwi/1673 based on the orders of this court of the 24th July, 2025. d. Each party to bear its own costs. These are the orders of the court. DATED, SIGNED AND DELIVERED IN THE OPEN COURT ON THIS 20TH DAY OF AUGUST, 2026. HON. HABIB SALIM VUMBI SENIOR PRINCIPAL KADHI Delivered in the open court in the presence of the following: Ms. Mkabane for the Applicant Mr. Sha Mwahima …. Court Assistant SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. HABIB SALIM VUMBI (SPK) KWALE KADHI COURT KADHI COURT DATE: 2026-08-20 11:02:18 https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/20/eng@2026-08-20 4

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