https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7916

In re Estate of Abonyo (Deceased) (Family Appeal E002 of 2025) [2026] KEHC 7916 (KLR) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 7916 (KLR) Republic of Kenya In the High Court at Homa Bay Family Appeal E002 of 2025 OA Sewe, J May 7, 2026 IN THE MATTER OF THE ESTATE OF FRANCIS ODADA ABONYO (DECEASED) IN THE MATTER OF AN APPLICATION FOR REVOCATION OF GRANT Between Janet Atieno Odada 1st Applicant Gideon Malak Odada 2nd Applicant and Chrispin Maira Odada 1st Respondent Alice Akumu Abonyo 2nd Respondent Ruling 1.Before the Court for determination is the Summons dated 10th October 2024. It was filed by two of the beneficiaries of the deceased, Francis Odada Abonyo, namely, Janet Atieno Odada and Gideon Magak Odada pursuant to Section 76 of the Law of Succession Act, Cap 160 of the Laws of Kenya. Their prayer was for an order that the Grant of Letters of Administration Intestate issued to the two respondents, Crispin Maira Odada and Alice Akumu Abonyo be revoked. 2.The application was premised on the grounds that the Grant was obtained by concealment from the Court of material facts; and that the respondents have failed, after due notice and without reasonable cause, to proceed diligently with the administration of the estate and to produce to the Court within the prescribed period any proper inventory or account of the administration. They relied on their Supporting Affidavit sworn by the 1st applicant in which she averred that she is one of the daughters of the deceased, Francis Odada Abonyo. She deposed that the deceased, in his lifetime, was married to four wives, namely, Rosemary Koga Odada, Mary Margaret Akeyo Odada, Jenipher Okelo Odada and Naum Anyango Odada; three of whom are now deceased, including her mother, Mary Margaret Akeyo Odada. She further deposed that the surviving widow is now senile. 3.The 1st applicant further deposed that the deceased begot 30 children from his polygamous marriage, some of whom are now wrangling over the free property of their father as the administrators have failed to diligently administer the estate. She pointed out that, as a result of the wrangles, it has been impossible to finalize the distribution of the estate to the detriment of the beneficiaries; hence their application for revocation of grant for the administration to commence afresh. 4.In the Replying Affidavit sworn on 28th November 2024 by the 1st respondent, Crispin Maira Odada, he confirmed that he applied for Letters of Administration in respect of the estate of Francis Odada Abonyo; and that, initially they were co-administrators with his late brother Leopold Abonyo Odada. The 1st respondent further confirmed that the Grant was confirmed on 15th December 2020. 5.The 1st respondent further averred that he was in agreement with the averments of Janet Atieno Odada made in support of the application for Revocation of grant. He conceded that the deceased was the registered owner of the piece of land known as Kabondo/Kakangutu/577 measuring approximately 30.0 Ha.; and that the deceased had subdivided the said land parcel No. Kabondo/Kakangutu/577 into land parcel No. Kabondo/Kakangutu/893 and 894 in his lifetime, whereby land parcel No. Kabondo/Kakangutu/894 was divided among the four wives and physical demarcation placed at each boundary.Kakangutu 6.He further deposed that his expectation was that the said property, being the subject of this cause, would be divided as per the demarcation on the ground. He conceded he was opposed to survey being conducted because his siblings invited a surveyor without his knowledge. He also said he was opposed to the survey out of fear that his siblings would interfere with the demarcation that had been fixed on the ground. At paragraph 11 of his Replying Affidavit, the 1st respondent averred that he had no objection to the Grant of Letters of Administration issued to them being annulled or revoked to enable the family agree and start afresh the processes of administration to enable a fair and equitable distribution of the estate of the deceased. 7.The 2nd respondent also affirmed that the deceased, Francis Odada Abonyo, died on 6th September 2002; and that he was survived by his four wives namely Rosemary Koga Odada, Mary Margaret Akeyo Odada, Jenipher Okelo Odada and Naum Anyango Odada. She also averred that she is the widow of the late Leopold Abonyo Odada (Deceased), one of the administrators of the late Francis Odada Abonyo (Deceased), whose mother was the 1st wife, the late Rosemary Koga Odada. The 2nd respondent further averred that, vide an application for substitution and rectification of Grant dated 26th August 2018, she was appointed as the substitute for her husband, Leopold Abonyo Odada (Deceased), as an administrator alongside the 1st respondent, Crispin Maira Odada. She pointed out that the said application was drawn and filed by the 1st respondent herein. 8.The 2nd respondent averred that all the beneficiaries signed and/or appended their signatures on the Consent to the Mode of Distribution of the Estate of the Deceased. She explained that land parcel Numbers Kabondo/Kakangutu EAST/893 Kabondo/Kakangutu EAST/894 are a subdivision of parcel No. Kabondo/Kakangutu/577. She added that they agreed as a family that parcel no. Kabondo/Kakangutu EAST/893 be shared as per the number of the houses and representatives of each of the four houses were appointed to receive their share in trust and cause the same to be transmitted to their siblings. 9.At paragraph 10 of her Replying Affidavit, the 2nd respondent set out the names of the representatives of each of the four houses as hereunder:(a)Alice Akumu Abonyo to represent the 1st House of Rosemary Koga Odada;(b)Crispin Maira Odada to represent the 2nd House of Mary Akeyo Odada;(c)Ambrose Ofafa Odada to represent the 3rd House of Jenifa Okello Odada;(d)Paul Evans Odila Odada to represent the 4th House of Naum Anyango Odada. 10.The 2nd respondent pointed out that the above representative were to further subdivide the portions allocated to them to the beneficiaries that they were holding the said portions in trust of, as far as the houses they were representing is concerned. The 2nd respondent also mentioned that, vide a letter dated 22nd November 2020, the Rectified Certificate of Confirmation of Grant and the Amended Grant of Letters of Administration dated 15th December 2020 and 30th November 2020, respectively, were presented to Rachuonyo Land Registrar for further action. 11.The 2nd respondent confirmed that land parcels numbers Kabondo/Kakangutu EAST/893 and Kabondo/Kakangutu EAST/894 have since been subdivided and new numbers created; and that the concerned beneficiaries have been issued with their respective Title Deeds. She annexed copies thereof to her Replying Affidavit as Annexures A-5. The 2nd respondent also deposed that the two applicants and the 1st respondent are siblings from the 2nd House, the house of Mary Akeyo Odada, deceased). In her view, this is the reason why the 1st respondent was in agreement with the applicant’s prayer for revocation of grant issued. She however explained that the Grant is in their joint names with the 1st respondent and that the process has been finalized in respect of the other three houses. 12.The 2nd respondent further stated that it was within her knowledge that the 1st respondent had refused to share the portions of parcels nos. Kabondo/Kakangutu EAST/893 & Kabondo/Kakangutu EAST/894 that he was holding in trust for the applicants who are his immediate siblings. She therefore prayed that the Court be pleased to order the 1st respondent to the applicants their respective portions Kabondo/Kakangutu EAST/893 and Kabondo/KakangutuN EAST/894 that he was holding in trust for them. She otherwise prayed for the dismissal of the application dated 10th October 2024 with costs. In the alternative, the 2nd respondent prayed for rectification of Certificate of Confirmation of Grant dated 15th December 2020 to accommodate Land Parcels Numbers Nyando/Fort Ternan/199 & 200, which were inadvertently left out at the time of distribution. She however mentioned that, by consent of the family members, the two pieces of land had been subdivided as per the number of houses of the deceased. 13.The application was brought under Section 76 of the Law of Succession Act, which states that:“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--(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 assist 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(e)that the grant has become useless and inoperative through subsequent circumstances.” 14.Commenting on the import of the above provision, Hon. Mativo, J. (as he then was) took the following view in Re Estate of Wahome Mwenje Ngonoro (Deceased) [2016] eKLR:“…A close look at Section 76 shows that the grounds can be divided into the following categories:- the propriety of the grant making process; mal-administration or where the grant has become inoperative due to subsequent circumstances…” 15.In this instance there is no complaint about the propriety of the grant making process. It is not the case that the Grant has since become inoperative, for instance by sickness or death of the administrators. What the applicants have complained of herein is lack of diligence by one of the administrator in the administration and conclusion of the distribution. Thus, the only question to pose for determination in respect of the application dated 10th October 2024, is whether justification has been shown for revocation of grant on the ground of lack of due diligence pursuant to Section 76(d)(ii) of the Law of Succession Act. 16.A perusal of the record shows that the deceased died on 6th September 2002; almost 24 years ago. Grant of Letters of Administration Intestate was initially issued to Leopold Abonyo Odada and Crispin Maira Odada, the 1st respondent. Leopold has since died and was replaced by his widow, Alice Akumu Abonyo, the 2nd respondent herein. This was done vide an application for substitution and rectification of Certificate of Confirmation of Grant dated 26th August 2018. The 2nd respondent averred in her affidavit that the application for substitution was made by the 1st respondent, an indication that the beneficiaries of the subject estate were, by and large, in agreement with the process of issuance and confirmation of grant, save for the beneficiaries in the 2nd House whose representative is the 1st respondent. 17.The 1st respondent conceded to the application and was agreeable to revocation of the Grant. The application was however opposed by the 2nd respondent. She drew the Court’s attention to the fact that the two applicants and the 1st respondent belong to the 2nd house, being the son and daughters of Mary Akeyo Odada (deceased); thereby suggesting collusion in the filing of the instant application. 18.While there is no doubt that the administrators have taken too long to conclude the process of administration, the 2nd respondent demonstrated that:(a)The family members agreed that Land Parcels Numbers 893 and 894 be transmitted to representatives of each of the four houses, namely, Alice Akumu, Crispin Maira, Jenifa Okello and Paul Evans Odila, who were to further subdivide the portions allocated to them to the beneficiaries in their respective houses. At paragraph 12 of her Replying Affidavit, the 2nd respondent averred that vide a letter dated 22nd November 2020, the Amended Grant of Letters of Administration Intestate and the Rectified Certificate of Confirmation of Grant were presented to Rachuonyo Land Registry for further action; and that the two pieces of land have since been subdivided and new parcel numbers created out of them.(b)She conceded that the 1st respondent has refused to share the portions transmitted to him in trust for his siblings. Therefore, the 2nd respondent urged the Court to order the 1st respondent to discharge his duties as an administrator and trustee and cause the beneficiaries in their house to received their respective shares of the estate. She also prayed for the Certification of Confirmation to be rectified to accommodate two pieces of land, namely, Nyando/Fort Ternan/199 and Nyando/Fort Ternan/200 which had not been taken into account, though the family has already consented on how the two parcels are to be distributed. 19.It is therefore manifest that, whereas the beneficiaries are largely in agreement, there is a stalemate regarding the final steps necessary for vesting of title in the names of the beneficiaries in the 2nd House. Considering the duration of time taken since the demise of the deceased, I am satisfied that, as regards the share of the deceased’s estate due to the house of Mary Akeyo Odada, the 1st respondent has failed to proceed diligently with the administration of the estate by distributing the same to his siblings, including the two applicants. It bears repeating that the 1st respondent conceded to the application. 20.In the premises, I find merit in the application dated 10th October 2024. The same is hereby allowed and orders granted as follows:(a)That the Amended Grant of Letters of Administration and Amended Certificate of Confirmation of Grant issued to Crispin Maira and Alice Akumu Abonyo be and is hereby revoked.(b)That a Further Amended Grant of Letters of Administration and Further Amended Certificate of Confirmation be issued in the joint names of the two applicants in place of Crispin Maira Odada to represent the house of Mary Akeyo Odada jointly with Alice Akumu Abonyo.(c)The administrators to ensure completion of the administration process within 6 months from the date hereof and to present accounts for approval by the Court.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF MAY 2026……………………………..OLGA SEWEJUDGE