https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7529

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **SUCCESSION CAUSE NO 216 OF 2010** **IN THE MATTER OF THE ESTATE OF OMARI KERE MASIBO (DECEASED)** **JOHN WANJALA OMARI KERE…1ST PETITIONER/RESPONDENT** **GETRUDE NEKESA BARASA….2ND PETITIONER/RESPONDENT** **FELISTUS NANJALA BARASA…..3RD PETITIONER/RESPONDENT** **AND** **FRONICAH NABUKWANGAWA** **MUSIAYO……………………………………..OBJECTOR/ APPLICANT** **RULING** 1. **Omar Kere Masibo** died intestate on 17 February 1974. **John Wanajala Omari Kese** filed a petition for Letters of Administration Intestate. A grant of Letters of Administration Intestate was issued to John Wanjala Omari Kere ( John) on 6th October 2020. He filed an application to confirm the said grant dated 11.1.2011. The grant was confirmed, and a certificate of confirmation was issued dated 25 May 2017. The only asset left by the deceased was **Bokoli/Chwele/404, measuring 24 acres**. The certificate of grant dated 25th May 2017 distributed the land parcel to 20 beneficiaries. 2. On 19.12.2016, Getrude Nekesa Barasa (Getrude) and Felistus Nanajala Barasa (Felistus), daughters of the deceased’s son, filed an application to revoke the grant, alleging they had been omitted from the distribution list. In a judgment dated 9th November 2018, Justice Ali Aroni (as she then was) appointed John Wanjala and Wanyonyi Kere as administrators. The two were to oversee the subdivision, issue titles, and meet the associated costs. The Court re-distributed the deceased’s property. Wanyonyi Kere received 8 acres, John Wanjala Omari received 10 acres, Getrude Nekesa Barasa received 3 acres, and Felistus Nanajala Barasa received 3 acres. The shares of Getrude and Felistus were to be divided between John and Wanyonyi. 3. Fronicah Nabukwangwa Musiayo (Fronicah) filed a Summons to revoke or annul the grant dated 30.10.2024. In her application, she sought the following orders: 4. ***Spent*** 5. ***THAT pending the hearing and determination of the application inter partes, this Honourable Court be pleased to issue orders of temporary injunction restraining the Respondents herein , their servants, agents, and any one claiming under them from selling , leasing and or disposing off the entire or part of the all that parcel of land known as Bokoli/ Chwele /404 and any resultant partitions thereof.*** 6. ***THAT the grant of representation to the estate of the late Omari Kere Masibo issued to John Wanjala Omari Were & Wanyonyi Kere on 9th day of November 2018 and confirmed thereto be revoked and or annulled*** 7. ***THAT the costs of the application be awarded to the Objector/ Applicant*** 8. The objector filed a supporting affidavit dated 30.10.2024. She deposes that the grant was confirmed without including all the beneficiaries, particularly the deceased's daughters. The daughters were therefore disinherited. As daughters of the deceased, they have equal priority and interest to the other children of the deceased, and they did not consent to the confirmation or the mode of distribution. Of the deceased’s nine (9) children, only three were involved in the confirmation of the grant. Rebecca Khakasa, Prisca Nabuyaka, Priscila Namarome, Anna Nafula, and Redempta Khayinga, the daughters of the deceased, were all left out; thus, the administrators concealed material information, and the succession proceedings were carried out in secrecy. 9. John Wanjala did not oppose the application. Getrude filed a replying affidavit dated 20.11.2024. She opposes that application. She depones that the applicant is not being sincere. They filed the application dated 19.12.2017; a judgment was delivered on 9.11.2018; and a certificate of grant was issued on 28.2.2019. The deceased left behind the following children: Rebecca Nganya, Prisca Naliaka (deceased), Prisclla Namarome (deceased), Vincent Barasa (deceased), Wanyonyi Kere (deceased), Fronicah Nabukwanga, Nalliaka (deceased), John Wanjala, and Redempta Khainja (deceased). They were made parties in the matter, being the children of Vincent Barasa, now deceased. They have been subjected to unnecessary anguish. They have eviction orders in ELC case no 25 of 2022 against the petitioners. The applicant knew and was aware of what was going on vide succession cause no 216 of 2010 and that it is an afterthought of wanting to reverse the due process. The grant should not be revoked or annulled since the beneficiaries have already gotten titles and are at the tail end of getting their rightful share. The petitioner and the applicant have ganged up to deprive the children of Vincent their rightful share. 10. Parties adduced viva voce evidence. The objector adopted her affidavits as her evidence and remained firm that she was not involved in the distribution of the deceased’s estate nor were sisters included. She denied knowing that Wanyonyi had sold part of the land. John admitted that his sisters were not involved when the deceased’s estate was distributed. He has heard that his brother’s daughters have titles. He wants all the deceased to be involved in the process. He admitted that in the certificate of confirmation of the grant issued in 2017 Fronika was given one acre, however Fronika did not sign the consent to the second mode of distribution. It is the sons who got land. His two sisters are alive. The deceased had not distributed the land before he died. 11. Getrude admitted that the deceased’s six daughters were not involved in the succession and that they did not sign and that they are entitled to inherit. She told court that the land belonging to the deceased has been totally sold out and only her father’s grave yard is left and that the shamba is still being sold. They have title deeds. 12. The objector reiterated the contents of her affidavit in her submissions. Mr. Anwar for the Objector raised four issues for determination as follows; 13. ***Whether the deceased, whose estate is herein, had daughters and whether they were involved in the cause herein.*** 14. ***Whether the daughters of the deceased herein were involved during confirmation and whether they consented to the mode of distribution.*** 15. ***Whether the grant of letters of administration and confirmation thereto ought to be revoked.*** 16. ***Whether the application dated 30th October 2024 has merit and what orders should the Court thus grant.*** 17. On the 1st issue, it was submitted that the deceased had six daughters who were not included in the cause. This was a material non-disclosure of facts. On the 2nd issue, it was submitted that the deceased’s daughters were not involved in the confirmation, nor did they consent to the distribution of the estate as confirmed. This fact was admitted by the petitioner and the respondents, and thus the grant is liable for revocation. On the 3rd issue, it was submitted that the objector has established that the deceased’s daughters were left out during the confirmation, did not consent to the mode of distribution, and therefore the grant was obtained fraudulently and by way of material non-disclosure, which makes the grant liable for revocation on the grounds set out in section 76 of the Law of Succession Act. On the 4th issue, the objector urged this court to grant the orders sought in their application dated 30th October 2024. Reliance was placed on the following cases, Julia Mutune M’mboroki vs John Mugambi M’mboroki & Others [2016] KEHC 7023, In Re Estate of Moses Wachira Kimotho (Deceased) [2009] KEHC 3958 (KLR), In Re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR), and In Re Estate of Magangi Obuki (Deceased) [2020] KEHC 348 (KLR). 18. The 1st petitioner submitted as follows: the only issue for determination is whether the grant should be revoked. The petitioner further submitted that it is not disputed that the applicant is the daughter of the deceased and was not recognised as a daughter and beneficiary, and therefore her consent was never sought. This affirms the position that there was material non-disclosure and that the applicant was disinherited from her rightful share of the deceased’s estate. That equality and freedom from discrimination are fundamental rights anchored in the Constitution of Kenya 2010, and that the only way the applicant can receive her settlement from the estate is through revocation of the grant. Reliance was placed on the following cases: Jameleck Maina Njoroge vs Mary Wanjiru Mwangi [2015] eKLR, Re Estate of Prisca Ong’ayo Nande (deceased) [2020] KEHC 6553 KLR, Re Estate of Lerionka Ole Ntutu (deceased) [2008] eKLR, and Mary Rono vs Jane Rono and William Rono C.C.A. No. 66 of [2002] eKLR. **ANALYSIS AND DETERMINATION** 1. I have considered the rival affidavits, the evidence, the submissions and the law, and in my view, whether the grant should be revoked as sought. It is not in dispute that the applicant is the daughter of the deceased. Getrude and Felistus admitted at the hearing for confirmation of the grant that the applicant and her sisters were not present. This is also admitted by the petitioner, her younger brother. 2. Section 76 of the Law of Succession Act Cap 160 provides as follows; ***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)…** 13. In Albert Imbuga Kisigwa v Recho Kavai Kisigwa Succession Cause No. 158 of 2000 Mwita J (as he was then) stated as follows: - ***“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.” [Own emphasis]*** 1. On the evidence adduced, it is clear that material facts were concealed. The deceased had daughters who were neither informed of the succession proceedings nor asked to consent to the petitioner's proposed mode of distribution. This occurred at both the first and the second confirmation hearings. 2. Article 27 of the Constitution prohibits any form of discrimination on the grounds of race, sex, marital status or culture. Article 27(3) of the Constitution specifically provides that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres”. 3. As daughters of the deceased, the applicant and her sisters are entitled to a share of their father’s estate. The petitioner had no good reason to exclude his sisters on two occasions. Daughters are entitled to inherit unless they renounce their rights. In this case, therefore, the daughters of the deceased who are still alive have not renounced their rights to the estate. I find that the objector is a legitimate beneficiary of the deceased's estate. 4. Having established that the grant and confirmation were obtained by material non-disclosure, I find that the application dated 30th October 2024 has merit and grant it as prayed. The parties shall agree on an administrator/s within the next 30 days. As this is a family matter, each party shall bear their own costs. **Dated, signed and delivered virtually this 29th Day of May 2026.** **R. E.OUGO** **JUDGE** **In the presence:** **John Wanjala Omari Kere/ Petitioner** **Getrude Nekesa Barasa/ Respondent** **Felistus Nanjala Barasa/Respondent** **Fronika Nabukwangwa Musiayo/ Objector**