https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10872

In re Estate of Cheleski (Deceased) (Succession Cause E005 of 2024) [2026] KEHC 10872 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10872 (KLR) Republic of Kenya In the High Court at Bungoma Succession Cause E005 of 2024 REA Ougo, J July 17, 2026 IN THE MATTER OF THE ESTATE OF WATILA WALTER CHELESKI ( DECEASED) Between Judith Nabalayo Cheleski Respondent and Moses Mbeki Cheleski 1st Objector Rosemar Nanyama Cheleski 2nd Objector Ruling 1.. Walter Chelekesi Watila, the deceased, died on 6th April 2023. Judith Nabalayo Chelekesi, the petitioner/respondent, filed a petition for letters of administration intestate in March 2024. In an affidavit dated 26th March 2024, she deposes that the deceased intestate left the following surviving him:i.Judith Nabalayo Chelekesiii.Aggrey Kasembeli Chelekesiiii.Everlyne N. Chelekesiiv.Hellen Munyasili Watilav.Timothy Watilavi.Reuben K. Chelekesivii.Enalda Khakasaviii.Jones N. Chelekesiix.Moses Mbeki Chelekesix.Bill Mukitano A. Chelekesi 2.She listed the following assets as belonging to the deceased;i.Land Parcel No. S. Malakisi/Mwaliye/796ii.Land Parcel No. S. Bukusu/S. Kanduyi/ 4089iii.Land Parcel No. S. Malakisi/Mwaliye/25iv.Land Parcel No. S. Malakisi/ Mwaliye/1284v.Land Parcel No. S. Malakisi/Mwaliye/1286vi.Land Parcel No. Malakisi/ Township/5 3.She obtained a grant for letters of administration dated the 27th June 2024. 4.On 1.10.2024, Moses Mbeki Chelekesi and Rosemary Nanyama Chelekesi filed a Summons seeking annulment and rectification of the grant under section 76 of the Law of Succession Act, Cap 160. The applicants seek the following orders.i.That the grant of letters of administration issued to the petitioner on the 27.6.2024 be annulled and/or rectified.ii.That the objectors be included as co-administrators of the estate of the deceased.iii.That the proceedings to obtain the grant were defective in substance.iv.That the grant was obtained fraudulently by making of false statements and by concealment from court of material facts to this cause.v.That the petitioner is using the grant to disinherit the applicants who have interest in the properties of the deceased. Objectors Case 5.In an affidavit dated 19.9.2024, Moses Mbeki (1st Objector-Moses) avers that he is the deceased’s son and that his mother, Bilha Nakitang’a Chelekesi, was the deceased’s 2nd wife. He has a brother, Bill Nakitanga Cheleseki. He further avers that the petitioner secretly filed this cause and excluded him from representing the 2nd house. After the petitioner obtained the grant, they were prevented from collecting rent from their allocated houses in Chwele. 6.. Rosemary Nanyama Chelekesi (2nd Objector-Rosemary) deposed as follows in her affidavit dated 19.9.2024. She is the deceased’s 3rd widow. The deceased left her and one minor, Moses Chelekesi. The petitioner secretly filed this cause, excluding her, to represent the 3rd house. The petitioner has gone ahead and stopped her from collecting rent from the allocated rental houses at Chwele. 7.. The objection was canvassed by way of viva voce evidence. The parties filed written statements, which they adopted at the objection hearing. Moses and Rosemary gave evidence as the objectors, and Judith as the petitioner. 8.Moses adopted his statement dated 16.12.2024. His statement reiterates what is deponed in his affidavit in support of the application. During cross-examination, he testified that after his father’s death, he went to live with his father in Kanduyi, parcel no. 796. He was 4 years old then. He was not staying with the petitioner. His father was buried in parcel no. 796. Currently, he stays in parcel no. 4089, which is about 0.14ha. He denied selling portions of parcel no. 4089. His father died in 2013. Rosemary began staying in parcel no. 796 in 2011. He stayed with Rosemary from 2011. They went to the ACC office regarding the letters of administration; all of them went, including the two mums. They discussed many things at the ACC office. They did not discuss succession, as the matter was in court. Before their father died, everyone was given land, including the sisters. Before his father died, Judith was staying on a portion of the land. He could not confirm whether there were divorce proceedings between the deceased and Judith before he died. They stayed with Rosemary and her two children before their father died. He was not informed that they had filed the succession cause. He seeks to be an administrator of the deceased’s estate. 9.Rosemary adopted her two affidavits dated 19.9.2024 and 7.3.2025. In her affidavit dated 7.3.2025, she annexed a dowry agreement and funeral programmes, and stated that their marriage was blessed with one issue, Moses Watila, born on 4.10.2010. During cross-examination, she testified that she has 3 children, not 8. She was not at the burial of Simiyu Edward. She has three children with Edward. She married Walter in 2008. The title deed of the parcel of land she lives on does not have the name of the petitioner. Bill and Moses did not stay with Judith. The petitioner has left out the other beneficiaries. She never moved to the deceased’s home with eight children. The deceased left her in the property where she was. Judith had left the deceased. She referred to a letter showing that the deceased paid her dowry. She is seeking to be an administrator. Her child, Moses Watila, is a beneficiary. 10.Billy Mukitanga Chelekesi adopted his statement dated 7.3.2025. He testified that he is the deceased’s child and that his father had three wives. His mother was called Bilha, and the 1st Objector is his brother. In 2009, the deceased married the 2nd Objector, and they have stayed with her since 20f09. The petitioner left them in 2008, following a dispute with the deceased, and moved to plot no. 25. She stayed away until their father died, then returned to demand plot no. 796. It is only fair that, from the 2nd house, his brother, the 1st Objector, should be included as an administrator to protect their interests. The 2nd Objector should also be an administrator. During cross-examination, he testified that his mother died in 2002 and that they lived with his father in Kanduyi. His father married mama Sarah, who died. They never stayed with the petitioner. He has no papers to show that the petitioner divorced the deceased. They began staying with Rosemary in 2008. Rosemary and Moses Watila are not listed as beneficiaries. PETITIONER’S CASE 11.Judith, the petitioner, adopted her statement, a replying affidavit dated 14.11.2024, and a further affidavit dated 26.9.2025 as her evidence. She testified as follows. She married the deceased in 1969. She purchased parcel no. 796. She worked as a teacher. On 23.4.1973, she confirmed her marriage at Friends Church Busakala. She sponsored her husband to join college and train as a teacher. They bought properties and developed them. Her husband sired two children, Moses Mbeki and Billy Mukitanga, with Bilha Machuma. When their mother died, the deceased transferred the two children to Malakisi in 2002. She lived with the deceased until Rosemary appeared as a maid, and she came with a boy named Moses. She learnt later that Rosemary had married Edward Simiyu and that they had eight children. Rosemary had no capacity to marry. The birth certificate of Moses Watila is suspect, and she would like them to go for a DNA test. 12..Patrick Kundu, a village elder of Kabswara, adopted his statement dated 18.3.2025 as his evidence. He testified that he knows the deceased. The deceased and the petitioner bought land in his area and built a house, and that the petitioner is still living there. Upon the deceased’s death, Roselyne told him that the deceased was her husband. He knows that the 2nd Objector comes from Chwele and that she went with her children to Chelekesi’s home. He knew she was married elsewhere to the late Edward Simiyu Wasilwa. The petitioner and the deceased were not separated or divorced. Submissions 13.. Parties filed written submissions, which I have considered. The objector urged this court to allow the application on the ground that the petitioner had concealed from the court that Moses N Chelekesi and the 2nd objector were beneficiaries of the deceased’s estate. The petitioner submitted that she had proved that the 2nd objector was married with eight children and that there was no evidence that she had divorced the deceased. She acknowledged that Moses and Bill were beneficiaries of the estate. The application should be dismissed. Analysis And Determination 13.. I have considered the evidence adduced, the submissions and the law. The issue for determination is whether the applicant's application meets the threshold for revocation of the grant under Section 76 of the Law of Succession Act. 14.. Section 76 of the Law of Succession Act provides as follows:“ 76.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 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 …; ore.that the grant has become useless and inoperative through subsequent circumstances.” 15.In re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR, the court clearly set out what to consider in an application under section 76 as follows:“Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the Applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.” 16.The objectors' case is that they are the deceased’s beneficiaries and that they were not informed by the petitioner when she filed the succession case in court. The petitioner denies this. She admitted that the 1st objector and Bill, his brother, are the deceased’s sons, that she included them in the petition she filed, and that the issue of succession was discussed when they went to the chief’s office. The 1st objector acknowledged that they went to the ACC’s office, but the issue of succession was not discussed. I find this statement unpersuasive. It is apparent that the parties had issues, which is why they went to the chief’s office. The petitioner did not exclude the 1st objector and his brother, Bill Chelekesi, from the petition. They are listed as beneficiaries. I note that the 1st objector and his brother did not sign the consent attached to the petition, but they are listed as beneficiaries. 17.The petitioner has not concealed any facts about the beneficiaries she knew. She has expressly stated that she has issues with the 3rd beneficiary, Moses Watila, and that a DNA test ought to be conducted to establish that he is the deceased’s son. This has not been done. 18.The petitioner has also challenged the 2nd Objector’s claim to be the deceased’s widow. Rosemary asserts that she was the deceased’s wife. To support her claim, she attached a funeral programme and a document regarding a dowry payment. In my view, neither a funeral programme nor a dowry agreement constitutes sufficient legal proof of marriage. She admitted that she had a relationship with Edward Simuyu and that they have three children. Although the chief’s letter dated 14.3.2024 indicates that she was a widow, this assertion has not been sufficiently proved. Thus, the 2nd Objector cannot be an administrator. 19.Under Section 76 of the Act, the court has discretion to revoke or annul the grant. After considering all the evidence, I find that the proceedings are not defective, and the objectors have not proved that the grant was fraudulently obtained by making a false statement or concealing material facts from the court. The 1st Objector and his brother have been included as beneficiaries of the deceased's estate. I am not persuaded that the objectors should be appointed administrators of the deceased's estate. The petitioner has demonstrated that she has included the deceased's known beneficiaries. I find no merit in the application to revoke the grant. 20.Accordingly, I make the following orders:a.The summons for revocation dated 19.9.2024 is hereby dismissed in its entirety.b.Since this is a family matter, each party is to bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF JULY 2026.R.E.OUGOJUDGEIn the presence of:Miss Nanzushi - For the Petitioner/RespondentMr. Wamalwa . S. - For the ObjectorsRosemary Nanyama ChelekesiWilkister - C/A