https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10508

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **SUCCESSION CAUSE NO. 57 OF 2010** **IN THE MATTER OF THE ESTATE OF HELLEN CHEPKOECH (DECEASED)** **AND** **GILES TARPIN LYONNET.........................................................PETITIONER** **VERSUS** **ABRAHAM KIPKOECH CHERUIYOT** **PETER MISHEL ……………………………………………………….......... OBJECTORS/APPLICANTS** **Coram: Before Justice R. Nyakundi** **M/S Awour Otieno DM & Associates** **M/S Ngigi Mbugua & Co. Advocates** **M/S Chepkitany & Co. Advocates** **RULING** 1. Before this Court is Summons for Revocation and/or Annulment of Grant dated 10th day of June 2025, expressed to be brought under Section 76(a), (b) & (c) of the Law of Succession Act CAP 160 Laws of Kenya, Rules 44 and 73 of the Probate and Administration Rules. The Objector seeks the following orders: 2. *THAT this Honourable Court be pleased to revoke and/or annul the Grant of letters of Administration intestate made to the Petitioner herein on the 17/1/2014.* 3. *THAT upon granting of prayer 1 above, this Honourable Court be pleased to issue fresh grant of letters of administration intestate to be made in the joint names of the two Applicants i.e Abraham Kipkoech Cheruiyot and Peter Mishel.* 4. *THAT the honourable Court be pleased to grant any additional or alternative orders that this Court may deem fit and just to grant in the circumstances.* 5. *THAT the costs of this application be provided for.* 6. The application is grounded on the following grounds:- 7. *THAT the Applicants herein are the biological children of the deceased herein hence beneficiaries of her estate.* 8. *THAT the Objectors/ Applicants herein have beneficial/ equitable interest in the estate of the deceased and are the sole beneficiaries of the estate.* 9. *THAT the Petitioner herein fraudulently obtained the grant of letters of administration intestate having completely misinformed the Court, excluded the Objectors/ Applicants from the Petition and thus denied the Objectors/ Applicants their rights to the estate.* 10. *THAT the Petitioner/ Respondent obtained the grant of letters of administration intestate fraudulently and by misinforming the Court that he was married to the deceased when in fact the deceased died without getting married and as such left no spouse.* 11. *THAT the grant of letters of administration intestate made to the Petitioner was made through concealment of material facts to this honourable Court particularly that the deceased was survived by two children who are the Applicants herein.* 12. *THAT the two Objectors/Applicants are the sole beneficiaries of the estate herein by virtue of being the biological children of the deceased.* 13. *THAT it is therefore in the interest of justice and fairness that the grant of letters of administration intestate made to the Petitioner herein on the 17/1/2014 be revoked and a fresh grant be issued.* 14. *THAT this application is brought in good faith and it is in the interest of justice that this application is allowed.* 15. In support of the application is the supporting affidavit of Abraham Kipkoech Cheruiyot Peter Mishel who deponed as follows: 16. *THAT I am the 1st Objector/ Applicant herein and my co- objector/applicant, PETER MISHEL, who is my biological brother has given me his consent to make and swear this affidavit on my own and on his behalf in support of our application herein.* 17. *THAT the deceased herein was our biological mother and to the best of my knowledge, the deceased was never married and she died a spinster* 18. *THAT the Petitioner herein petitioned this honourable Court for grant of letters of administration by means of fraud and misinformation as he misled the honourable Court into believing that he was the husband to the deceased when in fact he knew that he was not.* 19. *THAT it was never brought to this Court’s attention that the deceased had children who survived her and as such the grant of letters of administration herein was obtained by concealment of material facts and based on untrue allegations.* 20. *THAT I am informed by my advocate on record that the grant of letters of administration herein and the proceedings herein were taken out against the provisions of Section 38 of the Law of Succession Act and with the intention of disinheriting us from the estate of our mother.* 21. *THAT I only came to learn of the existence of this cause recently in the month of May, 2025 when I got wind that someone had filed a succession cause over the estate of my mother claiming that he was the husband and further that there were allegations that the deceased never left any child.* 22. *THAT when I got the case number of this matter and got to peruse the Court file, it is when I got to confirm that which I had heard and thereafter I moved swiftly to instruct my advocates now on record to proceed and have our interests protected in this cause.* 23. *THAT neither I nor my co-objector were consulted or consent obtained from us by any party prior to the petition herein being filed in Court and neither were we ever cited in any cause prior to the institution of this cause.* 24. *THAT the Petitioner is a stranger to the Objectors/Applicants and the estate herein as he was never married to the deceased.* 25. *THAT to the best of my knowledge no citation proceedings were ever filed and/or served upon the Objectors/applicants by the Petitioner/Respondent.* 26. *THAT having been completely excluded from these proceedings, my co-objector and I stand the great risk of being disinherited by the Petitioner’s actions unless this honourable Court comes to our aid and allows our application herein.* 27. *THAT I know of my own knowledge that this is a case fit for nullification/ revocation of the Grant issued to the Applicant/Respondent as the Applicant/Respondent is guilty of misapprehension of material facts, concealment of material facts and for misleading the Court thus fraudulently obtaining the grant herein and it is therefore just and fair that the orders sought herein are granted.* 28. In response to the application is the replying affidavit of Paul Rono Pymto, and Charles Kibiegon Rono who jointly stated as follows: 29. *THAT we are the initial first set of Objectors/Respondents herein seized of the facts of this matter and therefore competent to swear this affidavit.* 30. *THAT I have read the application dated the 10.06.2025 by the 2nd set of Objectors/Applicants and the contents explained to us by our Advocate on record Isiji C. Johnson and that we have understood the facts therein and wish to oppose and/or reply as hereunder;* 31. *THAT from the onset the 2nd set of Objectors/Applicants application is made in bad faith, falsehoods, misconceived, devoid of merit, frivolous, vexatious, bad in law, incurably defective and an abuse of the Court process only aimed at duping this Honourable Court to arrive at a just and fair determination and thus incapable of obtaining the orders sought.* 32. *THAT we associate ourselves fully with the sentiments of GILES TARPIN LYONNET the Petitioner herein to the extent that the 2nd set of Objectors/Applicants are not and have never been either biological and/or even adopted children to HELLEN CHEPKOECH deceased our sister herein whose estate is subject to confirmation.* 33. *THAT in response to paragraph 1 of the said Supporting Affidavit, we wish to state that ABRAHAM KIPKOECH CHERUIYOT and PETER MISHEL the 2nd set of Objectors/Applicants are not biological brothers as stated therein and the same averments is falsehood only meant to grab the entire estate of HELLEN CHEPKOECH deceased our sister by themselves.* 34. *THAT in response to paragraph 2 of the said Supporting Affidavit, we wish to state that it is true that HELLEN CHEPKOECH deceased our sister was never married to the Petitioner herein and that she was never the biological mother to the 2nd set of Objectors/Applicants herein as she was unfortunately barren.* 35. *THAT in response to paragraph 3 of the said Supporting Affidavit, we wish to state that the matter was ventilated before Hon. Justice Fred A. Ochieng now deceased and a judgment delivered on the 17.01.2014 which was a subject of appeal at the Court of Appeal whereby judgment was delivered by a three (3) judge bench comprising of S. Gatembu Kairu JJA, A. K. Murgor JJA and F. Sichale JJA on the 29.07.2016 whereby the judges stated that it was premature and that parties shall be canvassed that issue among others raised at the time of confirmation and as such there has never been fraud and misinformation and or misleading this Honourable Court.* 36. *THAT in response to paragraph 4 of the said Supporting Affidavit, we wish to state that there has never been any concealment of material facts before this Honourable Court from the onset since the 2nd set of Objectors/Applicants are NOT the children of the deceased and have never been as indicated in the Chief’s letter dated the 05.08.2009 that was issued to HELLEN CHEPKOECH parents KIPRONO ARAP BIOMDO and ANNAH CHEPTERER TABSABEI the prior to institution of the present case. (Annexed and marked as "PRPCKR1" is a copy of the said chief's letter).* 37. *THAT in further response to paragraph 8 above of this Replying Affidavit, we wish to state that the deceased never had any children during her lifetime as purported by the 2nd set of Objectors/Applicants who as a matter of fact they are not biological brothers as per their averments as both were born by different fathers and different mothers who is not HELLEN CHEPKOECH deceased our sister.* 38. *THAT in response to paragraph 5 of the said Supporting Affidavit, we are advised by our advocates on record which advice we verily believe to be true that the 2nd set of Objectors/Applicants have fabricated and/or falsify the birth certificate purporting to be children of the HELLEN CHEPKOECH deceased yet the true fact is that each has his own mother and father and thus there is misinterpretation and/or misapprehension of the provision of Section 38 of the Law of Succession Act by the 2nd set of Objectors/Applicants.* 39. *THAT in response to paragraphs 6 and 7 of the said Supporting Affidavit, we wish to state that ABRAHAM KIPKOECH CHERUIYOT is uneconomical with the truth as all along he has been aware of this matter before this Honourable Court through her biological mother CHRISTINA CHEPKEMOI BIOMDO our sister who strangely is our witness when we were following up on a parcel of land known as SUBDIVISION MARKED "B" OF PLOT NO. 3404 (ORIGINAL NO. 191/34) OF SECTION 1 MAIN LAND NORTH now CR. 47434 which property the Petitioner herein stated that it belonged to HELLEN CHEPKOECH deceased and was illegally and/or fraudulently transferred to his mother and he had proposed to be given to us.* 40. *THAT in further response to paragraph 11 above of this Replying Affidavit, we wish to state that base on the foregoing, it is clear the 2nd set of Objectors/Applicants are fraudsters and this Honourable Court has to put an end to their shenanigans by subjecting the forged birth certificates to forensic and also ordering their prosecution for giving false information under oath as evident in their supporting affidavit which is full of lies.* 41. *THAT in response to paragraph 8 of the said Supporting Affidavit, we are informed by our advocates on record which information we verily believe to be true that the 2nd set of Objectors/Applicants are neither biological children nor adopted children of HELLEN CHEPKOECH deceased and they were not dependant of the deceased as envisaged under Section 29 of the Law of Succession Act and as such their consent was not required at all.* 42. *THAT in further response to paragraph 11 above of this Replying Affidavit, we are further informed by our advocates on record which information we verily believe to be true that in any event the law of consanguinity doesn't favour the 2nd set of Objectors/Applicants more so ABRAHAM KIPKOECH CHERUIYOT whose biological mother CHRISTINA CHEPKEMOI BIOMDO our sister is still alive and in respect to PETER MISHEL his biological mother is a Uganda and father a French National as such he is not entitled to inherit the property of the deceased.* 43. *THAT in further response to paragraph 14 above of this Replying Affidavit, we are advised by our advocates on record which advice we verily believe to be true that besides investigating the two (2) purported birth certificates by the 2nd set of Objectors/Applicants we shall also insist on a DNA test to be carried out for ABRAHAM KIPKOECH CHERUIYOT and his biological mother CHRISTINA CHEPKEMOI BIOMDO our sister and PETER MISHEL to confirm that indeed the two are not biological brothers and that CHRISTINA CHEPKEMOI BIOMDO our sister is the biological mother to ABRAHAM KIPKOECH CHERUIYOT and NOT HELLEN CHEPKOECH deceased before the hearing of their application.* 44. *THAT in response to paragraph 9 of the said Supporting Affidavit, we wish to state that it is true the Petitioner herein was never married to HELLEN CHEPKOECH deceased our sister as the so-called French marriage certificate has never been registered with the High Court of Kenya to date for official use.* 45. *THAT in response to paragraph 10 of the said Supporting Affidavit, we wish to state that the 2nd set of Objectors/Applicants are NOT biological children or adopted children or the dependant of HELLEN CHEPKOECH deceased for them to be required to be cited before commencement of these proceedings as they can best be referred as fraudsters since they have forged the said birth certificates to try and mislead this Honourable Court in their favour.* 46. *THAT in further response to paragraph 17 above of this Replying Affidavit, we are further advised by our advocates on record which advice we verily believe to be true that mere forged birth certificates don't qualify the 2nd set of Objectors/Applicants to be biological children of HELLEN CHEPKOECH deceased.* 47. *THAT in response to paragraph 11 of the said Supporting Affidavit, we wish to state that the 2nd set of Objectors/Applicants shall not suffer any prejudice and/or great risk if their application is dismissed with costs as they are NOT biological children or adopted children or the dependant of HELLEN CHEPKOECH deceased as they have forged the two (2) birth certificates to mislead this Honourable Court and we shall be asking for Court summons to be issued to CHRISTINA CHEPKEMOI BIOMDO our sister the mother to ABRAHAM KIPKOECH CHERUIYOT to come and give evidence under oath and confirm that she is the biological mother to one of the 2nd set of Objectors/Applicants herein.* 48. *THAT in response to paragraph 12 of the said Supporting Affidavit, we are informed by our advocates on record which information we verily believe to be true that the 2nd set of Objectors/Applicants are the ones who are trying to mislead this Honourable Court by bringing forged birth certificates purporting to be biological children of the deceased yet they are much aware that CHRISTINA CHEPKEMOI BIOMDO our sister is the mother to ABRAHAM KIPKOECH CHERUIYOT and PETER MISHEL his biological mother is a Uganda facts which are well within their knowledge and as such they are the ones guilty of misapprehension of material facts, concealment of material facts therefore the said application has to be dismissed with costs to us.* 49. *THAT we swear this affidavit in strong opposition to the application on record dated the 10.06.2025 by the 2nd set of Objectors/Applicants and pray that the same be dismissed with costs to us as the as the 2nd set of Objectors/Applicants have presented to this Honourable Court a forged birth certificates purporting to be biological children of HELLEN CHEPKOECH deceased yet the true fact of the matter is that ABRAHAM KIPKOECH CHERUIYOT biological mother is CHRISTINA CHEPKEMOI BIOMDO and PETER MISHEL biological mother is a Ugandan Nationality.* 50. In response to the application of Paul Rono Pymto and Charles Kibiego Rono is the Replying Affidavit of Giles Tarpin Lyonnet who stated as follows: 51. *THAT I am the Court appointed Administrator of the estate of my deceased wife Hellen Chepkoech who died on 26.11.2008.* 52. *THAT this cause was commenced by the 1st set of Objectors Paul Rono Pymto and Charles Kibiego Rono in their capacities as brothers of my deceased wife.* 53. *THAT I came into this cause through objection proceeding which I made through my advocates on 12.1.2011* 54. *THAT the objection I made was contested by the 1st set of Objectors/co-Respondents and this Court vide its judgment of 17.1.2014 (Ochieng F (J) as he then was made me the Administrator.* 55. *THAT part of the documents relied on by the 1st set of Objectors were a letter from the chief and family agreement both annexed and marked GTL4 (a) and (b) which documents I now revoke to demonstrate that the applicants to the latest attempt to revoke the grant issued to me are impostors who were unknown to the family and to me as far back as 2008 or 2010 when this process began.* 56. *THAT I married the deceased on 4.9.1992 in a civil wedding and lived with her as husband and wife until her death on 26.1.2008 and at no time were the 2nd Objectors either introduced to me as her biological children or adopted children.* 57. *THAT I am advised by my counsel Ngigi Mbugua which I trust as true that were the Objectors to pass paternity to the deceased, they would have been recognized by the community and the family, which does not appear to be the case.* 58. *THAT I have seen the two birth certificates No. 137670 and 4569397 issued to the applicants in 2019 and 2014 and deduced that they are forgeries procured after death to support fraud since the claim to have been born in 1987 and 1999. There is need for Court to see the persons who have annexed their birth certificates and interrogate their source as I suspect then are tailor made to grab the estate I helped build.* 59. *THAT the emergence of the applicants in this cause in 2025 speaks volumes their intentions and I urge the Court to thoroughly vet the applicants because they never featured when I entered into the deceased's life, married her or even when she died.* 60. *THAT I am aware of my own knowledge and on the advice of my Lawyers on record, that relationship bone out of marriage are legal and they subsist till death and indeed that was the reasoning of Fred Ochieng (J) as he then was when he adjudged me the Administrator in 2014 (see 4 above).* 61. *THAT I am further advised by my Advocate Mr. Ngigi Mbugua, which I trust as true that the issue of who should or shouldn't be a beneficiary of the estate has already been decided and that the current application is therefore res judicata.* 62. *THAT I have reliably learnt that Abraham Kipkoech Cheruiyot is the son of Christina Chepkemoi, who is listed as a sister in the chief's letter dated 5.8.2009 (supra) while Peter Mishel is the son of a deceased lady called Betty who hailed from Uganda while his father was Pierre Mishel, also deceased and who was a French National and once worked at Turkwel Gorge project for a French Company called Spie Batignoles.* 63. *THAT I was appointed Administrator and heir of this estate in an open and transparent process which the Objectors are casting aspersions to.* 64. *THAT this application and the remaining objection by the 1st set of Objectors paint a picture of a people who do not accept reality that the deceased was married and her estate should transit to her spouse who survived her.* **Decision** 1. This intestate estate has been contested for some time now since its initiation before this Court way back in 2010. It started with introductory letter by the chief dated 5th August 2009 which in contest stated as follows: *This is to certify and confirm that above mentioned person is a deceased who is a deceased was a resident of my area of jurisdiction. She was not married and had no children. She left the following persons as the beneficiaries of her estates.* 1. *Kiprono Arap Biamdo – father ID No. 47214 75 years* 2. *Annah Chepterer Tapsabei – ID/NO 403877318 (Mother) – 81 years.* 3. *Paul Ronoyomto – ID/NO 0326764 Brother – 54 years.* 4. *Christina Chepkemboi Biamdo – ID/NO 387759 – (Sister) 57 years.* 5. *Joseph Kiplering Ronoh – (Brother) – 60 years.* 6. *Charles Kibiegon Ronoh – ID/NO 9577820 – Brother – 48 years.* 7. *Eunice Chelangat Kering – (Sister) – 51 years.* 8. *Joel Kibiy Ronoh – ID/NO 9238955 (Brother) 44 years.* 9. The making of the grant was objected to by Giles Tarpin Lyonnet on 11th January 2011 in text and context as follows: 10. *THAT GILES TARPIN LYONNET is not one of the heirs but should be the sole heir and Administrator of the estate of the deceased to the exclusion of all else including the applicants.* 11. *THAT I have not renounced my rights nor consented to the applicants nor have been served with citation to renounce such rights.* 12. *THAT it will be improper for the applicants who are merely brothers of the deceased and who were not dependants to be made Administrators to the exclusion of her widower.* 13. The deceased Hellen Chepkoech died 26th January 2008. The record shows that on 3rd October 2011 the objector Giles shared with the Court the following affidavit which stated as follows on oath: 14. *THAT, I am the Objector herein above and have consent to depone to these facts therefore competent and duly authorized to make this affidavit.* 15. *THAT,I am the widower of the late Hellen Chepkoech.* 16. *THAT, the Reply to Objection to Making of Grant affidavit sworn by Charles Kibeigo Rono on 4th August 2011 has been read and explained to me by my Advocate on record and I wish to respond as hereunder.* 17. *THAT, the late Hellen Chepkoech and I were legally married on 4th September 1992 and I was still married to the deceased till her demise on 26th January 2008, pictures of marriage taken at the Eldoret DC office, the announcement advert in the Nation News Paper dated 30/01/2008 and the burial program of the deceased* 18. *THAT, the deceased and I were not married under the Customary Law as claimed by the Petitioner but under the Kenyan and French Law.* 19. *THAT, the deceased died intestate and as per Law of Succession 1, the only surviving dependant of the deceased should be the sole heir and Administrator of the estate of my deceased wife.* 20. *THAT, I have not renounced my rights nor consented to the applicants nor have I been served with citation to renounce such rights.* 21. *That it will be improper for the Petitioners who are merely brothers of the deceased and who were not dependants to be made Administrators to the exclusion of her widower who is me.* 22. *THAT I am not aware of any family agreement recorded or otherwise concerning deceased died intestate and it is up to Court to appoint an Administrator of her estate.* 23. *THAT, we lived happily with my deceased wife as husband and wife till her demise on 26th January 2008 contrary to what was deponed in the Petitioners’ affidavit on 4th August 2011.* 24. The session Judge Ochieng J as he then was, having heard the parties ruled as follows: 25. *Even in the absence of the admissible Marriage Certificate, I find and hold that there was an irrefutable legal presumption of the marriage between the Objector and Hellen Chepkoech.* 26. *I also note that Charles Kibiego Rono stated, in his affidavit sworn on 4th August, 2011, that;* *“... the deceased depended on her parents and brothers, and at one time even sold her father's motor vehicle to secure transport/travel ticket to go abroad.”* 1. *To my mind, that suggests that the Petitioners were not actually Dependants of the deceased. If anything, they appear to have been her benefactors. However, I must make it clear that this finding is not final. Perhaps, the circumstances may have subsequently changed, resulting in the Petitioners or either of them becoming Dependants. That will be a matter of evidence.* 2. *For now, and by virtue of the provisions of Section 66 of the Law of Succession Act, I declare that the Objector shall be, forthwith, the Sole Administrator of the Estate of Hellen Chepkoech.* 3. *The issues as to whether or not there are other Dependants, and ultimately, how the estate will be distributed, will be determined when the Administrator files an application for the confirmation of the Grant. It is my sincere hope that the parties concerned will strive to find an amicable solution to the question of distribution. However, if they fail to resolve the issues amicably, the Court will give effect to the relevant provisions of the law.* 4. *As regards the costs of the Objection proceedings, I order each of the parties to bear his costs. I so order, in the hope that it will help in keeping emotions from heightening before the Grant comes up for confirmation.* 5. *In Conclusion, I feel that it is necessary to emphasize that when a person dies intestate, the estate of that person cannot be effectively distributed outside the Court. By the phrase “effective distribution”, I mean the exercise which can thereafter enable each beneficiary to get lawful title to the portion which has been given to him.* 6. *The chiefs and members of the respective families may play a role in trying to help in resolving issues of distribution, but without an order from the Court, the Commissioner of Lands or the Registrar of lands cannot issue a title to any beneficiary.* 7. *It is only when a Court of law gives an order, specifying the property which is to be transferred to a particular person, that the said person would thereafter acquire a title thereto lawfully.* 8. *It is thus important for the Chiefs and family members to appreciate that in matters of the Administration of the estates of persons who died intestate, they have a limited role.* 9. *Meanwhile, Administrators must also appreciate that their role is to gather together all the assets of the deceased. They then also identify the liabilities.* 10. *They have no authority to dispose of assets without express orders from the Court. They do not even have authority to distribute the assets.* 11. *When they have paid-off all liabilities, the Administrators must return to the Court, to seek authority to distribute the remaining assets to the beneficiaries.* 12. *I have deemed it necessary to point out these two points, because all too often, there is unnecessary anxiety following the appointment of Administrators, if we think that they do not ordinarily, support one or another Dependant.* 13. *Administrators are answerable to the Court and to the Dependants for their actions. And the Court does justice to all parties without fear or favour* 14. This decision on the presumption of marriage and appointment of Giles Tarpin Lyonnet as the sole Administrator to the estate of the deceased is yet to be substantively overturned by the Court of Appeal. the best the Court of Appeal did 29th July 2016 was pronounced itself as follows: 15. *We have considered the record, the rival arguments made before us as well as the law. We are in agreement with Mr. Ngigi for the Respondent that the appointment of the Respondent as the sole Administrator is not to say that he is the sole beneficiary. Indeed, the issue as to who will inherit what will be the subject of adjudication at the confirmation stage, in the event that the appellants and the Respondent do not reach a consensus. The issue as to whether the Respondent has capacity to administer the deceased's estate and/or administer a freehold immovable property are among issues to be canvassed at the time of confirmation. Indeed the issues raised by the appellant shall find their place then and we think that* *this appeal is premature and not merited. It is hereby dismissed with costs.* 16. The one and only Giles Tarpin Lyonnet was declared to be the sole Administrator in the matter of the estate of Hellen Chepkoech(deceased). There is also uncontroverted evidence of a marriage certificate between Tarpin Lyonnet and Hellen Kipkoech celebrated in Eldoret Rift Valley province in the Republic of Kenya on 4th September 1992. That further on 2nd September 1997 in the French Embassy in Nairobi a declaration to that effect was made. There are two questions to be answered with regard to the motion of the revocation of grant. First and foremost, is the re-visitation of the issue of whether the Petitioner during the lifetime of the deceased their had entered into a marriage union? In the first instance the session Judge Ochieng J has already alluded to elsewhere in this judgment made a finding that there was a presumption of marriage which had not been rebutted by any other independent evidence. The Court then being presided over by a Judge Coordinate went further to declare Giles Tarpin Lyonnet as sole Administrator to the estate of Hellen Chepkoech (Deceased). 17. As a matter of affirmation of the law and in a manner salting that decision of the Court then **Halsbury’s Laws of England, Matrimonial and Civil Partnership Law (Volume 72) 5th Edition 2015** made the following observations: “*Where a man and a woman have cohabited for such a length of time, in such circumstances, as to have acquired the reputation of being man and wife, a lawful marriage between them will be presumed even if there is no prior evidence of any marriage ceremony having taken place, particularly where the relevant facts have occurred outside the jurisdiction and this presumption can be rebutted only by strong and weighty evidence to the contrary.”* 1. Similarly, **Bromley Family Law 5 Edition** provides that: *“If a man and woman cohabit and hold themselves out as husband and wife, this in itself raises a presumption that they are legally married.”* Section 119 of the Evidence Act, Cap 80 Laws of Kenya is also instructive. It provides as follows: *“The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”* 1. That declaration made by this Court presided over by Ochieng J, remains an unimpeachable decision of the Court. The evidence by the 1st and 2nd Objectors even is deponed on oath is not cogent evidence to the contrary that it can rebut the findings of a Court of law on presumption of marriage. That is not the end game of this legal battle between the Petitioner and the Objectors, there is additional evidence admitted before this Court that presumption of marriage between the Petitioner and the deceased went further to be crystallized by the issuance of a marriage certificate No. 46 of 1997 where a declaration was made at the French Embassy at Nairobi on 2nd September 1997 in which the Petitioner and the deceased were formally and in law recognized as husband and wife. 2. It is the law in Kenya that under the Constitution in Art 45 and the Marriage Act proving a marriage requires valid statutory certification from a recognized forum may it be a Christian marriage, civil, or one which had attained customary rights. This marriage certificate is a temper proof evidence that during the lifetime of the deceased in her own individual autonomy entered into a marriage union with the Petitioner. In our own legal system, even before the advent of the Marriage Act 2014 a form of Civil Marriage is primarily proved by presenting a valid marriage certificate issued by the Registrar of Marriages. In the documentary evidence before this Court this civil marriage was celebrated in Eldoret Rift Valley Province on 4th September 1992 and a declaration was made of the two being spouses on 2nd September 1997 at the French Embassy at Nairobi. The affidavit evidence by the Objectors have failed to rebut or controvert this valid marriage by dint of a marriage certificate which has been admitted before this Court as cogent, credible and truthful documentary evidence according to the Law of the Land. 3. In connection with the claim and counterclaim as between the Objectors and the Petitioner, the question arose whether a marriage subsisted between the Petitioner and the deceased. The Objectors attempted to show that there was no valid marriage contracted between the deceased and the Petitioner, the best they were, can be described as friendship on and off with no intention of a formal marriage. The Objectors before me seem to ignore that the learned Judge Ochieng J, as he then was, held in a carefully reasoned judgment that the marriage was valid and that the parties, being the Petitioner and the deceased were to be regarded as husband and wife. There is no evidence to show that, the Marriage Act in acting on the various level of formalizing marital unions it outlawed the doctrine of presumption of marriage. My reading of the Marriage Act as enacted by Parliament, has not expressly stated the Kenya’s legal system has abolished that level of recognition of presumption of marriage. There maybe a presumption but any person or individual who has an intention to contract a marriage should either celebrate under the force of law namely; Christian marriage, Islamic Marriage, Hindu marriage, civil marriage or customary marriage. That is to say that if parties make their autonomous choice to cohabit together without necessarily formalizing their marriage within the above spectrum of the Marriage Act, 2014 they would not be entitled to marital rights which flow from Article 45 of the Constitution, the Matrimonial Property Act and other related statutes which confer marital rights. 4. As against this background and to the surprise of the Objectors, that presumption of marriage did not stop there, as founded by Ochieng J but there is sufficient evidence of valid celebrated marriage which is valid according to the personal law which applied to the Petitioner and the deceased as residents of Kenya and now by marriage citizens of France. This is one case which reminds this Court of the following statements shared with the Court on one of the already decided cases and I quote *“I do not believe in God and no religious marriage therefore was celebrated” and further on the same day I did not celebrate a religious marriage or civil marriage or a customary marriage because such marriages mean nothing to me. The Respondents went further to state that he had chosen to cohabit with my spouse for the last 15 years and that to that extend am not a lesser husband.”* In that regard I accept the version without reservation and the intention of the parties was to achieve a status of a marriage in accordance with the doctrine of presumption of marriage under Section 112 of the Evidence Act. I have no doubt that from the point of view of the Kenyan law during their period of residency in Kenya the Petitioner and the Deceased contracted a valid marriage recognized under the Marriage Act 2014 of the laws of the land. 5. Although the Petitioner did not expressly refer to the plea of *res judicata* under Section 7 of the CPA, a reading of the previous proceedings impliedly raises this plea. The principle of *res judicata* estoppel was outlined and examined by Courtney Orr J (deceased) in **llene Kelly, Errol Melford, Executors Estate Evelyn Francis deceased v. Percival Gager et al and Fonten Downer**. S.C.C.L. E 299 of 1998). He adopted the following dicta: "*res judicature is a special form of estoppel. It gives effect to the policy of the law that the parties should not afterwards be allowed to re-litigate the same questions over even though the decisions may be wrong. As between themselves, the parties are bound by the decision and may neither re-litigate these course of action nor he open any issue which is an essential part of the decision. These two types of res judicature now-a-days distinguished by calling them 'course of action estoppel' and 'issue estoppel respectively'. The constituents of res judicata estoppel 19. A party setting up re judicata by way of estoppel as bar to his opponents claim or as a foundation of his own, must establish the constituents elements, namely:* 1. *The decision was judicial in the relevant sense* 2. *It was in fact pronounced* 3. *The tribunal had jurisdiction over the parties and the subject matter* 4. *The decision was* 1. *Final and* 2. *On the merits* 5. *It determined the same question as that raised in the later litigation and* 6. *The parties to the later litigation were either parties to the earlier litigation or their privies or the earlier decision was in rem”* 6. Similarly, in **Endel Thomas v Att. Gen Trinidad and Tobago P.C. App. 20/89.** There Lord Jauncey of Tullichette said of the principle: *“It is in the public's interest that there should be finality to litigation and that no person should be subjected to an action of the instance of the same individual more than once in relation to the same issue. The principle applies not only where the remedy sought and the grounds therefore the same in the second action as in the final but also where the subject matter of the two actions being the same, it is sought to raise in the second action matters of fact or law directly related to the subject matter which could have been but were not raised in the first action.”* 1. This is a doctrine of global application and is applicable in both trial and appellate Courts. In the context of our jurisdiction, the following decisions demonstrate the application of the doctrine which is anchored in Section 7 of the CPA: * ***John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 Others (Petition 17 of 2015):****The Court reinforced that once rights are judicially determined, the matter cannot be reopened, preventing re-litigation under different disguises* * ***Geoffrey M. Asanyo & 3 others v The Attorney General (SC Petition 21 of 2015 & Petition 7 of 2019):****These cases addressed the application of res judicata regarding consent orders and previous determinations of similar issues* * ***Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another (Motion No 42 of 2014):****This ruling established key tests, confirming the doctrine applies to prevent re-agitating issues in both ongoing and new litigation.* 1. Normally, in our jurisdiction a decision or a decree passed by a Court of competent jurisdiction duly established under Art 50 (1) of the Constitution, after adjudication on the merits of the rights of the parties, operates as *res judicata* in a subsequent suit or proceedings and binds the parties or the persons claiming rights, titles or interests from the adverse parties. The plea of *res judicata* can only be assailed in an appeal or revision, as the case may be. The Court in **Satadhyan Ghosal v Deorajin Debi [1960] 3 SCR 590** the principle of *res judicata* and its essentials was laid down as follows: *The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter — whether on a question of fact or a question of law — has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.* 1. In the instant case, in so far as the earlier proceedings are concerned which were finally determined on the merits by Ochieng J and to this extent in which the Objectors have lined themselves through their respective affidavits and evidence before this Court within the doctrine of *res judicata* the parties cannot be allowed to re-agitate the matter again at a subsequent stage of the same proceedings with regard to whether the Petitioner and the deceased were validly married. This Court, given the significance of this dispute between the parties which has been outstanding for a long time did scrutinize the entire record and any decisions allegedly made by coordinate Judges of the High Court and the only conclusion is that the current proceedings are voidable in the applicability of *res judicata* and estoppel. The Court in **Hope Plantations Ltd v Taluk Land Board (1999) 5 SCC 590** in the context of this case it was held that: *It is settled law that the principles of estoppel and res judicata are based on public policy and justice. Doctrine of res judicata is often treated as a branch of the law of estoppel though these two doctrines differ in some essential particulars. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the judgment and are estopped from questioning it. They cannot litigate again on the same cause of action nor can they litigate any issue which was necessary for decision in the earlier litigation. These two aspects are ‘cause of action estoppel’ and ‘issue estoppel’. These two terms are of common law origin. Again, once an issue has been finally determined, parties cannot subsequently in the same suit advance arguments or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is to approach the higher forum if available. The determination of the issue between the parties gives rise to, as noted above, an issue estoppel. It operates in any subsequent proceedings in the same suit in which the issue had been determined. It also operates in subsequent suits between the same parties in which the same issue arises. Section 11 of the Code of Civil Procedure contains provisions of res judicata but these are not exhaustive of the general doctrine of res judicata. Legal principles of estoppel and res judicata are equally applicable in proceedings before administrative authorities as they are based on public policy and justice.* 1. In the instant case I am convinced that the writ of the objection before me by the Objectors is hit by the doctrine of *res judicata* in view of the previous decision adjudicated before Ochieng J and a final decision dated 17th January 2014. In this latest objection the Objectors sought to challenge the marriage by reopening the litigation but unfortunately for them the issue of marriage as between the Petitioner and the deceased in light of the valid marriage certificate settled the legal position and therefore hold that the Petitioner and the deceased during her lifetime were in a formal marital union. That is no longer an issue of litigation in this succession cause. It is interesting that the Objectors, they claimed to know more about the Petitioner and the Objectors and their personal lives but they depart from acknowledging the existence of a valid marriage. There is an averment from the Petitioner that he married the deceased way back in 1991 but to the Objectors he was just a friend but failed to convert the concrete evidence on the validity of the marriage union. Law remains to be a significant instrument regulating the affairs of the society including marital relations and is not about opinion of a third party which carries the day in defining which union falls within a marriage legal structure and which is recognized as being the known established legal provisions. Likewise, the Petitioner and the deceased have demonstrated their legal union of marriage prior to this litigation as which served as the foundation of their wellbeing before the demise of the deceased. The earlier appointment carried out by this Court constituted differently invoking Section 66 of the law of Succession Act is not capable of being reviewed or set aside in so far as the Petitioner *locus standi* to the estate is concerned. 2. The million dollar question is whether the Objectors are legitimate heirs to the intestate estate of the deceased as defined under Section 29 of the Law of Succession Act. In Kenya law legitimate heirs and beneficiaries under the law are required to proof the element of biological or legal relationships, valid marriage, or financial dependency. The key decided cases and principles in our jurisdiction include the following authorities: * ***In re Estate of Onesmus Kibira Wanjohi (Deceased) [2025] KEHC 4079 (KLR)****: The High Court ruled that legal submissions do not constitute evidence in proving heirship. Claimants must provide substantive documentation (such as birth certificates, DNA results, or official Chief's letters) to prove they are legitimate dependents or direct biological heirs of the deceased* * ***Recognition of Customary/Second Wives (e.g., In re Estate of Ndolo Kioko Musyimi - 2026)****: The High Court (Justice H.K. Chemitei) reinforced****Section 3(5)****of the Law of Succession Act, ruling that a woman in an invalid customary marriage (due to an existing monogamous union) qualifies as an heir and dependant, provided she was publicly acknowledged and cohabited with the deceased.* * ***In re Estate of Joel Dindi Magero [2025] KEHC 1580****: The Court reaffirmed that in testate succession (when a will exists), the deceased has the freedom to dispose of property. However, legitimate dependants (including spouses and children) who are left out or inadequately provided for can legally contest using****Section 26****of the Act to prove their right to maintenance.* * ***Fatuma [2023] SC Petition E035 of 2023****: The Courts have continually upheld that under certain religious frameworks (e.g., Muslim law), children born out of wedlock are deemed illegitimate and incapable of inheriting directly as heirs, highlighting the necessity of proving lawful marriage.* * ***Inheritance by Stepchildren & Grandchildren****: In various judgments, the High Court and Court of Appeal have clarified that stepchildren are****not****automatic legal heirs or beneficiaries unless they were formally adopted. Similarly, grandchildren cannot automatically inherit if their parents are still alive, unless they prove direct biological dependency and the Court rules in their favor via the principle of representation.* * ***In re Estate of Bilasio Sylvester Opondo Opiyo [2025] KEHC 3448:****The High Court reaffirmed that under Section 39 of the Act, blood relatives (such as brothers) only inherit if there is absolutely no surviving spouse, children, or parents.* * ***In Re Estate of M'richuni [2008] KEHC 2087:****The Court reinforced the position that a deceased's property belongs to direct line heirs (spouse/children) and that extended family/clan members, including siblings, do not have automatic rights of inheritance over direct beneficiaries* * ***Rono v. Rono (2005):****A landmark Court of Appeal ruling that solidified the protection of dependants within the immediate family (children and spouses) over extended family distributions.* 1. In our legal system legitimacy to an intestate estate is a question of law as provided for in the Law of Succession Act. One must substantiate his/her legal claim using statutory, evidential and documentary documents in line with the guidelines in the various regulatory frameworks. It is also my considered view that, in terms of being a legal heir to the estate that relationship with the deceased must be proved beyond the preponderance. The basis of this view being one must have secure a birth certificate, adoption orders, and any other document linking one to the deceased lineage during his/her lifetime and secure a bloodline or marital relationship with the deceased. The Supreme Court of Kenya has gone further and ruled that children born from void or voidable marriages are recognized as legitimate heirs and are entitled to equal inheritance shares in their parents’ properties. Therefore, the law envisions that on intestate succession evidence must be adduced by the objector or protester proving which class he/she belongs under our personal laws before his legitimacy can be validated by the Court. 2. The argument advanced by one Charles Kibyego Rono is that he is one of the sons of the late Kiprono Arap Biomdo and a brother of the deceased Hellen Chepkoech. He goes further to state in his affidavit dated 29th August 2023 that he and his brother Paul Rono were duly appointed to administer the estate of their late sister Hellen Chepkoech. In his further evidence they both claim to this estate as persons who were financially and materially dependent upon their sister and therefore for the making of the grant to the Petitioner ought to be revoked as there was no evidence of marriage to position him as a spouse to the deceased. He went to give a proposal on how best the estate of the deceased should be shared among the beneficiaries as per the mode of distribution herein below: | | | | | --- | --- | --- | | **DESCRIPTION OF PROPERTY** | **BENEFICIARY** | **SHARES** | | Ngeria/Megum Block 4(Saina)/13 1.62 Ha equivalent to 4 acres | Gilles Tarpin Lyonnet Paul Rono Pyomto Joseph Kipkering Rono Charles Kibiegon Rono Eunice Chelagat Kering Joel Kibii Rono | Shared equally | | Kericho/Kipchimchim/2471 0.4 Ha equivalent to 0.988422 acres | Gilles Tarpin Lyonnet Paul Rono Pyomto Joseph Kipkering Rono Charles Kibiegon Rono Eunice Chelagat Kering Joel Kibii Rono | Shared equally | 1. The Law of Succession Act states very clear, that if a deceased sister was married and survived by a husband and children her brothers are not direct beneficiaries or heirs as expressly stated in Section 29 of the Law of Succession Act. The surviving spouse and if they begotten children have absolute priority over the estate and siblings only inherit if the deceased left no spouse, children or parents. It is trite according to Section 29 of the Law of Succession Act the husband and children are the direct dependants and primary beneficiaries of a deceased woman’s estate and vice versa in the case of the deceased estate having belonged to the husband. In the case of secondary beneficiaries, as provided for under Section 39 of the Act brothers and sisters can only qualify as beneficiaries of the estate if the deceased died without a will and left absolutely no surviving spouse, children or parents. The Court has ruled on this issue as seen from the following cases: * ***In re Estate of Jatane Nawe Gube (Deceased) [2026] KEHC 1416:****The High Court dismissed an application by a sister claiming a share of her deceased relative's estate. The Court ruled that where a deceased leaves a surviving spouse or children, they take absolute priority. A sibling does not rank as a beneficiary unless they can prove they were financially dependent on the deceased and that there are no higher-priority heirs.* * ***In re Estate of Margaret Nduta Maina (Deceased) [2018] eKLR:****In this matter, the High Court dealt with a situation where a deceased woman's sister and brother initially petitioned for a grant of letters of administration. The Court reaffirmed that a married woman's direct estate devolves to her immediate family, rejecting attempts by collateral relatives to disinherit direct beneficiaries* 1. I have considered the evidence by the Objectors and the response given by the Petitioner in the various affidavits and statements which are captured on record giving the chronology of events of the family tree of the deceased and also her marriage to the deceased dated way back in 1991 but later crystallized by formalizing it and a marriage certificate was issued which remains unimpeachable legal instrument sealing the marital relationship between the two parties. The issue of marriage as between the Petitioner and the deceased has been determined by this Court which was presided over by Ochieng J sometime way back in 2016 and the judgment of the Court has not been appealed or set aside. In the course of this proceedings additional evidence adduced of a marriage certificate crystallized the validity of the marriage union. In my considered view, cumulatively the Objectors have no *locus standi* or legal capacity or right of a person to institute an action in a probate Court in the matter of the estate of Hellen Chepkoech. In *locus standi* cases it has been established and defined as a legal capacity for one to institute proceedings and that very person must show he/she has sufficiently been affected and that his/her personal rights have been infringed. This is not a public interest litigation for the Objectors to file an objection so as to deprive the Petitioner who is a spouse and a ranking member of his family to undertake the administration of the estate of his wife as provided for under Section 66 of the Law of Succession Act. I must say again and again that *locus standi* is the key that opens the door of justice so before a Court of law listen to one’s story in the adjudicatory process it must first determine whether the person before it is a proper person entitled to tell that story. 2. *This concept well defined in Black Dictionary which define locus standi as the right of a party to appear and be heard before a Court or tribunal on a given issue. In simple language, locus standi means the legal capacity or sufficient interest a person possesses to institute an action in Court. It answers the question: “what personal interest do you have in this matter:”* 3. I have listened to the parties in this succession cause and I have come to the conclusion that the applicable law does not allow a married sister’s rights over her properties to be administered by her brothers when there is a surviving spouse and in this case the Petitioner. These proceedings therefore have no legal legs to stand on so that the remedies being sought by the Objectors can be granted as against the right to private property under Art 40 of the Constitution which by dint of the Law of Succession Act must now be devolved to her spouse absolutely and further in view that they were not blessed with a child/children during the survivorship of their marriage and before her demise. 4. It is also clear from the evidence that the Objectors have not discharged the burden of proof of being dependants or being maintained by the deceased who was also their sister to make financial provisions for their maintenance within the Constitution and statutory framework. Their legitimacy to claim any financial provision or a share of the deceased estate is not well founded in law. It is an unconscionable claim against the estate of the deceased. It ought to be dismissed as I hereby do with costs to the Petitioner. **DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 14TH DAY OF JULY 2026.** **………………………….……….** **R. NYAKUNDI** **JUDGE**