In re Estate of Muya alias Ben Christopher Muya (Deceased) (Succession Cause E196 of 2024) [2025] KEMC 383 (KLR)

The Objectors added that the Petitioner herein had already caused land parcel number N.Malakisi/ W.Sasuri/480 (the suit property) to be registered in her name on the strength of the impugned Grant of Letters of Administration and the Certificate of Confirmation of Grant hence this suit. The Petitioner opposed the instant Application through a Replying Afidavit sworn on 02nd July 2025. She averred that the instant Application was not properly before this court since the Objectors ought to have moved this court through a Plaint in a substantive suit. The Petitioner acknowledged that the 1st Objector was the deceased’s 2nd widow and that the 1st Objector and the deceased were blessed with five children, including the 2nd Objector. She added that the Objectors chose not to be involved in the succession proceedings leading to the issuance of the impugned Grant of Letters of Administration despite several summons by local administrators, and that all the deceased’s parcels of land, including the suit property, were distributed per the deceased’s alleged oral will made by the deceased sometime in 1996. It was the Petitioner’s case that she followed all due process in obtaining the impugned Grant of Letters of Administration. The Application was canvassed by way of written submissions. All parties filed their written submissions that largely reiterated the positions they took in their pleadings. ANALYSIS AND DETERMINATION This court has carefully read and considered the pleadings, written submissions, and the authorities relied on by the parties herein. The only issues for determination are: 1. Whether this court had the jurisdiction to hear and determine this succession cause in the first instance 2. Whether the instant Application is properly before this court 3. Whether the instant Application is merited Whether this court had the territorial jurisdiction to hear and determine this succession cause in the first instance During the writing of this ruling, it came to the attention of this court that the deceased’s last place of residence at the time of his death was Chebuyuki while the suit property is situated in Malakisi. Chebuyuki and Malakisi are outside the territorial limits of this court. Before determining this issue, it is worth noting that none of the parties herein raised this issue in their pleadings. The general rule is that parties are bound by their pleadings and that a court cannot take a journey of wandering beyond the parties’ pleadings. Be that as it may, every general rule has exceptions. One of the exceptions to the general rule that parties are bound by their pleadings was restated in Kenya Agricultural and Livestock Research Organization v Okoko & another (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR) (29 June 2022) (Judgment), where Aburili J rendered herself thus: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/383/eng@2025-07-29 2

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‘A matter of law is not a matter that must be pleaded and a court of law can on its own motion determine such issue of law even where parties have not pleaded it. This is so because the court is deemed to know the law. In Pancras T Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal stated: “ “ 23. The High Court is presumed to know the law. That is why the Constitution has conferred on the High Court in Article 165(3)(a) unlimited original jurisdiction in Civil and Criminal matters and in Article 20 (3)(a) jurisdiction to develop the law and in Article 20 (3) (b) the mandate to interpret the Bill of Rights. It was expected that counsel, in getting up on the brief would come up with the law and authorities including the Treaty and the case-law. But he failed to do so. It was the duty of the Court to have before it the relevant law and to apply it correctly…” It is therefore my finding that the trial court did not err in entertaining the issue of the plaintifi/ appellant herein not having filed authority for institution of suit.’ The question of whether this court had the territorial jurisdiction to hear and determine this succession cause in the first instance is a point of law; therefore, such a question can be raised suo moto by this court for determination. It is also worth noting that jurisdiction being a fundamental matter can be raised by the court itself or a party at any stage of the proceedings (see Kenya Ports Authority vs Modern Holding [EA] Limited [2017] eKLR). The territorial jurisdiction of this court in probate matters is set out under section 49 of the Law of Succession Act that provides as follows in part:The Magistrate's Court within whose area a deceased person had his last known place of residence shall, if the gross value of the estate of the deceased does not exceed the pecuniary limits set out in section 7(1) of the Magistrates' Courts Act (Cap 10), have in respect of that estate the jurisdiction conferred by section 48. Provided that— i. the magistrate may, with the consent or by the direction of the High Court, transfer the administration of an estate to any other Magistrate's court where it appears that the greater part of the estate is situated within the area of that other magistrate or that there is other good reason for the transfer… A clear reading of Sections 48 and 49 of the Law of Succession Act leads to the inevitable conclusion that the place of instituting a succession matter is a deceased’s last known place of residence. As indicated above in this ruling, the deceased's last place of residence was Chebuyuki, and the suit property is situated outside the territorial limits. In the circumstances, by dint of section 49 of the Law of Succession Act, this court lacked the territorial jurisdiction to hear and determine this succession cause in the first instance, hence the impugned Grant of Letters of Administration and the Certificate of Grant herein are a nullity in law. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/383/eng@2025-07-29 3

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In any event, by proceeding with this succession cause without the requisite territorial jurisdiction, there is an error apparent on the face of the record that this court has the power to review and/or rectify through revocation of the impugned Grant of Letters of Administration and the Certificate of Grant herein. Having found that this court lacked the territorial jurisdiction to hear and determine this succession cause, this finding would ordinarily dispose this matter since without jurisdiction a court is required to down its tools. However, for completeness of the record, this court will still proceed to determine the other issues. Whether the instant Application is properly before this court The Petitioner averred that the instant Application was not properly before this court since the Objectors ought to have moved this court through a Plaint in a substantive suit. The Petitioner did not provide any legal basis for that argument. The orders sought by the Objectors are orders granted by a probate court in exercise of its inherent powers set out under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. Where a party moves a probate court to exercise its inherent powers, the party seeking such orders moves the court through summons. This is provided for under Rule 49 of the Probate and Administration Rules that provides as follows; A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by afidavit. The foregoing shows that a Plaint is not a mode of moving a probate court to exercise its inherent powers set out under section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules. This court also notes that since the whole of the deceased’s estate has not been fully distributed, this court is not functus oficio. Therefore, the Objectors could only move this court through summons. It is noteworthy that the provisions of the law under which the instant Application was brought under were not stated. Whereas that omission is an anomaly, it is this court’s considered view that the said omission did not render the instant Application incurably defective since the Petitioner was not prejudiced in any way whatsoever by that omission. The foregoing inclines this court to find and hold that the instant Application is properly before this court. Whether the orders sought are merited The Objectors seek the revocation of the Grant of Letters of Administration and Certificate of Confirmation of Grant herein as well as the cancellation of titles emanating from the suit property. The Objectors averred that the succession proceedings herein were conducted in secrecy by the Petitioner without involving the rightful beneficiaries. The Petitioner on the other hand argued that the Objectors chose not to participate in the succession proceedings and that the succession proceedings herein were in line with an oral will reportedly made by the deceased sometime in 1996. The grounds for revocation or annulment of a Grant of Letters of Administration are set out in Section 76 of the Law of Succession thus: 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— 1. That the proceedings to obtain the grant were defective in substance; https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/383/eng@2025-07-29 4

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2. 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; 3. 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; 4. That the person to whom the grant was made has failed, after due notice and without reasonable cause either— 5. 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 6. To proceed diligently with the administration of the estate; or 7. 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 8. That the grant has become useless and inoperative through subsequent circumstances. This court will now proceed to determine whether the Objectors have proved on a balance of probabilities the existence of any ground set out in section 76 of the Law of Succession Act reproduced above. The Petitioner conceded that the 1st Objector was the deceased’s second wife and that the deceased and the 1st Objector were blessed with five children who included the 2nd Objector. She also conceded that the Objectors were not involved in the succession proceedings herein since they reportedly chose not to participate in the said proceedings. The Petitioner also alleged that there existed an oral will made by the deceased sometime in 1996 on the distribution of his assets/parcels of land. A reading of the pleadings/Petition for Letters of Administration Intestate filed by the Petitioner herein shows that the Petitioner herein only listed Henry Muya (deceased), Agnes Chepkemoi Muya, Ian Kiptoo Chepkwony, and Fred Muya Ndiema as the deceased’s dependents. The Petition also states that the deceased died intestate contrary to the Petitioner’s submission that the decreased left behind an oral will on the distribution of his assets/parcels of land. Further, the Petition for Letters of Administration herein listed the suit property as the sole asset owned by the deceased at the time of his death yet the deceased left behind other assets/parcels of land listed in the Petitioner’s Replying Afidavit herein. Whereas the KamaKwaeek Clan Meeting minutes of 20th April 2024 show that some members of the deceased’s family reportedly chose not to attend clan meetings for purposes of making a decision on the distribution of the deceased’s estate hence prompting the deceased’s clan to appoint the Petitioner as the administrator of the deceased’s estate, that did not excuse the Petitioner’s failure to disclose to this court all the deceased’s assets and dependents. Had the Petitioner disclosed to this court in her pleadings that the deceased left behind other dependents other than the ones listed in the Petition for Letters of Administration herein, this court would not have issued the impugned Grant of Letters of Administration and Certificate of Confirmation of Grant without granting the Objectors an opportunity to be heard as spelt out under Rule 26 of the Probate and Administration Rules. https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/383/eng@2025-07-29 5

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It is against this background that this court finds and holds that the process leading to the issuance of the impugned Grant of Letters of Administration and Certificate of Confirmation of Grant was marred with material non-disclosure. Consequently, the impugned Grant of Letters of Administration and Certificate of Confirmation of Grant must sufier the fate of revocation. The Objectors urged this court to cancel the titles emanating from the suit property upon revocation of the Grant of Letters of Administration herein. What is the consequence of revoking a Grant of Letters of Administration a where a title has been procured on the strength of such a revoked Grant? This question has been answered in this jurisdiction in various court decisions set out below. In Re Estate of Adriano Nthiga Thangari (Deceased) (Succession Cause 175 of 2015) [2024] KEHC 8913 (KLR) (24 July 2024) (Ruling), Njuguna J. expressed herself as follows on this issue:The issue of cancellation of titles arises from this court’s ruling revoking the grant that had been issued to the respondent. In this case, the High Court bears jurisdiction to order cancellation of titles since it is the only way to give efiect to its judgment. Once the grant was revoked, it became necessary that the estate of the deceased be reconstituted as it was, before the respondent petitioned for the grant. Therefore, this court bears jurisdiction to determine the application herein since it arises within a succession cause. Similarly, in Santuzza Bilioti alias Mei Santuzza (Deceased) v Giancarlo Falasconi [2014] eKLR the court held: “ ……the succession court has powers to order a title deed to revert to the names of a deceased person. This in efiect amounts to cancellation of the title deed. Further, a succession court can order a cancellation of a title deed if a deceased's property is being fraudulently taken away by nobeneficiaries such as where the property is being sold before a grant is confirmed.” Lastly, in Re Estate of Kirogo Njoroge (Deceased) (Succession Cause 557 of 2015) [2023] KEHC 565 (KLR) (9 February 2023) (Ruling), Chemitei J eloquently expressed himself as follows:In the instant case, the applicants filed this cause and brought themselves under the provisions of the Law of Succession Act. The grant that was issued to the deceased brother was later revoked which had resulted to the issuance of the titles to the respondents. This means that, all actions including the registration of the deceased’s property in the respondents’ names was rendered a nullity. Unlike the situation described above by J. Musyoka, the applicants having brought themselves within the Law of Succession Act, this court in my view therefore has jurisdiction to order cancelation of the said titles so that the land can revert back to the deceased’s name. This court has fully appreciated the authorities above on the consequences of a probate court revoking a grant where a party has already used such a revoked grant to acquire title to the deceased’s asset/land. Given the foregoing, the Petitioner’s title to the suit property must be cancelled for the suit property to revert back to the deceased’s name. DETERMINATION The upshot of the foregoing is that the Objectors’ Application dated 20th June 2025 is allowed in the following terms: 1. This succession cause is struck out for want of territorial jurisdiction https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/383/eng@2025-07-29 6

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2. The Grant of Letters of Administration herein issued to Agness Chepkwemoi Muya on 28th July 2024 and confirmed by this court on 12th March 2025 is revoked for want of territorial jurisdiction, and material non-disclosure 3. All the actions undertaken by the Petitioner after the confirmation of the Grant of Letters of Administration, revoked in (b) above including the registration of the suit property in the Petitioner’s name, are declared a nullity 4. The status quo ante/status quo obtaining with respect to the suit property before the issuance of the Grant of Letters of Administration revoked herein is restored. That is to mean that ownership of land parcel number N.Malakisi/W.Sasuri/480 to revert in the name of the deceased herein one Christopher Wasike Muya alias Ben Christopher Muya 5. This being a matter involving family members, this court makes no order as to costs 6. File closed Ruling delivered virtually through the Case Tracking System (CTS) this 29th day of July 2025. T.O. OMONO RESIDENT MAGISTRATE SIGNED BY/FOR: # TH E JUDICIAR Y O F KENY A # HON. TOBIAS O. OMONO Bungoma Magistrate Court __ Magistrate Court Civil__ Date: 2025-07-29 08:32:09 The Judiciary of Kenya 1/9 Doc IDENTITY: 315523623133553327044320856827 Tracking Number:OOQWXQ2025 https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/383/eng@2025-07-29 7

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