https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11545

## **REPUBLIC OF KENYA** **IN THE HIGH COURT AT MIGORI** **SUCCESSION CAUSE NO 30 OF 2017** **IN THE MATTER OF: THE ESTATE OF IBRAHIM OKENDO.........DECEASED** **AND** **IN THE MATTER OF REVOCATION/NULLIFICATION OF GRANT LETTERS OF** **ADMINISTRATION** **AND** **IN THE MATTER OF: SECTION 76 OF THE LAW OF SUCCESSION ACT CAP 160** **AND IN THE MATTER OF: RULES 44, 63, & 73 OF THE PROBATE AND** **ADMINISTRATION RULES** **BETWEEN** **JOHN OKORA OKENDO………………………………PETITIONER/RESPONDENTS** **VS** **THOMAS BODI OKENDO…………………………………1st OBJECTOR/APPLICANT** **RISPER AOKO OTIENO…………………………………..2ND OBJECTOR/APPLICANT** **JOEL OBENGO KAWALA……………………………...3RD OBJECTORS/APPLICANT** **JUDGMENT** 1. The controversy in this matter relates to the parcel of land known as **KANYAMKAGO/KAWERE** 1/127 (Hereinafter referred to as "The Suit Land.” 2. The Petitioner and Objectors are family members of the late **Ibrahim Okendo Ndine** (Hereinafter known as the Deceased.) The Petitioner and the 1st Objector are sons to the Deceased while the 2nd and 3rd Objectors are the sister in-law and nephew to the Deceased respectively. 3. The Deceased died on **15th January 1990** Intestate. Sometime in 2011 the Petitioner petitioned for the administration of the estate of the deceased. That was in the **Principal Magistrate's Court at Rongo in Succession Cause No. 192 of 2011.** A Grant of letters of Administration Intestate was issued to the Petitioner on **8th November 2012** and further certified by the court on 20th February 2013. 4. **On 13th May 2014** the Protestors herein, then objectors/applicants, filed Summons for revocation of Grant in the High Court of Kenya at Kisii on the following grounds: a**) That the proceedings to obtain the Grant were defective in substance** **b) That the Grant was fraudulently obtained through false statements and omission of the names of the Objectors as beneficiaries** **c) That the Petitioner concealed the fact that the objectors are sons and daughter in-law of the deceased and further deprived them their entitlement to the Deceased’s estate** **d) That the procedure employed in the distribution of the Deceased’s estate in respect to the succession proceeding was impugned in fraught with illegibility leaving out the applicants as beneficiaries.** **e) That the court granting the letters of administration was devoid of Jurisdiction thereof the whole process was nullity *ab* *initio.*** **f) That the Grant of letters of administration and confirmation of grant be revoked in the interest of beneficiaries** **g) And that the applicants never consented to the petitioner taking out letters of administration.** 5**. On 29th May 2014** the High Court of Kenya at Kisii granted orders of injunction in succession cause No. 177 of 2014 (Formerly known as Succession Cause No. 192 of 2011 at the Principal Magistrate's Court at Rongo) subject to the Summons for Revocation of Grant dated 13th Mat 2014. The orders certified the summons urgent and pending the hearing and determination of the same, a prohibitory order of injunction was issued restraining the Petitioner from distributing or alienating the deceased’s assets particularly “The Suit Land” in any manner whatsoever for a 21-days period from the date of service thereof. Additionally, the Court gave an inhibitory order inhibiting any transaction, sale, change and/or any other dealings with the “Suit Land” for a 21-days period from the date of service thereof. 6. Service of the orders issued above were effected upon the Petitioner o**n 6th June 2014 and** o**n 14th July 2014**, he filed a replying affidavit in response to the Objectors application and affidavit sworn on the **13th of May 2014.** Therein he challenged their claims in the application dated **13/05/2014**.The Respondent contended that the 3rd Objector's claim stating that the 3rd objector was a nephew to the Deceased and had land titled **WEST KADIANG'A/144** very far away from the Deceased's home, and that he had been allocated the very land by the Deceased in his lifetime hence the 3rd Objector was in no way a beneficiary. The respondent further contended that all the Objectors had been allocated lands by the Deceased before his death and had lands with titles distinct from the "Suit Land" he had applied to administer. He further contended that the family had agreed to him making an application for probate and administration and that the Objectors be left out of the succession on grounds that they had already benefited. He opined that should the objection be allowed, the Objectors would benefit double making it unfair and unjust to the rest of the family. 8. Further, in the replying affidavit, the Respondent claimed that the objector's application for injunction could be seen as blackmail to the court as he-the 3rd Objector alleged that he was threatened with eviction knowing very well that he was on his land very far away from the “Suit Land.” The Respondent additionally attached and referred to the area Chief's letter dated **17/08/2011** claiming that the chief knew facts on the ground and his letter listed the beneficiaries. The chief's letter is marked J.0.0.3. 9. This court observes that the objectors presented a letter from the Chief Dated **19th June 2013** and listed as Number 4 in the Objectors’ list of documents. The said letter indeed directed one Mr. Joel Obengo Kawala to stop growing sugarcane on the "Suit Land" and stated that the chief was authorized by one Mr. John Okora Okendo, who is the Petitioner in this case, to stop the 3rd objector from cultivating on the land. The court further notes that during the cross examination of the chief appearing as DW3 on **28/05/2024**, the chief stated that he wrote an introductory letter of the beneficiaries and left out some beneficiaries (Thomas and Mariko) as he was told to do so by the Respondent (John Okora Okendo.) 10. On **5th February 2015**, the Respondent filed a further affidavit confirming the identity of the 3rd Objector as the son to the Deceased's brother and further stated that he had his home in Nyakach Within Kisumu with the land title **No.WEST KADIANG'A/144** very far away from the Deceased's home hence not a beneficiary of the Deceased's estate. 11. After perusing through the documents and land search documents presented by the Respondent regarding land title **No. WEST KADIANG'A/144**, the court notes that it is registered in the names of **OBENGO KAWALA** and **NOT JOEL OBENG KAWALA**. As such no assumptions can be made with absolute certainty that the owner **OBENGO KAWALA** is in fact **JOEL OBENGO KAWALA**, the 3rd Objector. 12. **On 11th March 2015**, the 1st Objector (Now applicant) filed a supplementary affidavit in response to the Respondent’s replying affidavit dated **14/07/2014**. Therein, the 1st Applicant-also the 1st Objector, counter claimed that land parcel No. **KANYAMKAGO/KAWERE 1/145** was his personal land purchased through his own proceeds of work and registered in his names. Likewise, he countered that the same goes for land parcel No. **KANYAMKAGO KAWERE 1/192** which his late brother Mariko Otieno Okendo purchased and registered in his names. He further argued that as sons to the Deceased, they were entitled to benefit from his estate particularly the ancestral land which is the “Suit Land” thus, their names should have been included in the Petition as beneficiaries. 13.This court notes that the 1st Objector’s claims to have purchased the land on his own were not backed up by any documents or evidence showing the sale/purchase agreement. At the same time, the Petitioner's claim that the lands were bought and given to the Objector’s by the deceased are not backed up by any evidence/document showing the sale/purchase agreement or transfer to the Objectors. 14. In the supplementary affidavit filed by the 1st Objector (Now applicant), he further stated that the Deceased had sub-divided the “Suit Land” amongst his sons wherein he cultivated and planted sugarcane and annexed a copy of a letter from the area chief marked TBO-06. He further expressed that no family meeting was held prior to the filing of the Probate and Administration in any court and that the further affidavit by the Respondent dated **5/02/2015** was irregular as no leave was sought to file the same. The 1st Objector further stated that the letter presented by the Respondent from the area chief (J.0.0.3) left out some beneficiaries in the Estate of the Deceased. **OBJECTORS'/APPLICANTS WRITTEN STATEMENTS MADE ON THE 15th JULY** **2015** 15.The 1st Objector stated that prior to the Deceased passing away, he bequeathed each of his 4 wives his parcel of land **No. KANYAMKAGO 1/127**, the “Suit Land. “As a son to the deceased, he had a right to inherit. Likewise, he stated that both the 2nd and 3rd Objectors had the rights to inherit s well since one was the wife to his late brother and the other a nephew to the deceased who had depended on the Deceased from a young/tender age respectively. The 1st Objector further stated that the petition for grant of letters of administration filed on **8th September 2011** at the Principal Magistrate's court in Rongo was done without their consent and furthermore, excluded them as beneficiaries. He further stated that the “Suit Land” was 28.0 Ha and was worth millions of monies thus the subordinate court at Rongo had no Jurisdiction to entertain the same. Finally, the 1st objector stated that the chief's letter as well as the supporting affidavits in support of the petition for Grant of letters of administration were full of falsehoods and made untrue averments concerning the beneficiaries/survivors as well as the value of the “Suit Land” at large hence perjury. As such, he prayed that the Grant be revoked and the court orders the title deed issued in the name of the Petitioner/Respondent Cancelled. 16. The 2nd and 3rd Objectors’ statements reiterated and concurred with the 1st objector's statement in its entirety. Likewise, they prayed that the Grant be revoked and the court orders the title deed issued in the name of the Petitioner/Respondent cancelled **PETITIONER'S/RESPONDENT'S WITNESS STATEMENTS** 17.The Kisii High Court also heard and evaluated the Petitioner's witness's statements namely Samwel Ndine Okendo (DW1), Charles Odero Gare (DWV2) and Jairus Opati Were (DW3). 18. DW1 presented a written statement where he introduced himself as the brother to the parties herein and a brother-in-law to the 2nd Objector. His statement was straightforward that the Deceased had bought a parcel of land and gave his two sons the late Mariko Otieno Okendo and Thomas Bodhi Okendo (The 1st Objector). Later on, the parcel of land was sub-divided into two between Mariko who got **LR NO. KANYAMKAGO/KAWERE 1/952** while the 1st Objector got **LR NO. KANYAMKAGO KAWERE 1/145**. He stated that Mariko's mother was buried in the said land that the deceased had given his two sons. DW1 also stated that while alive, the Deceased had instructed the Petitioner to be in charge of the suit land where DW1 stayed with his other brothers; James Oyoo Okendo, John Okora Okendo and Lawrence Obonyo Obilo. He further stated that while they had their homesteads on the ‘Suit Land,' the 1st and 2nd Objectors had and have no homesteads on the ‘Suit Land’ rather reside on their respective lands mentioned above. As such they should continue residing on their respective parcels and let the rest of the family continue residing on the "Suit Land.” 19. DW2 stated that he was a neighbor to the parties herein and knew them. He concurred with DW1 on the Deceased giving land to Mariko and the 1st Objector which was later sub-divided between the two. However, he made no mention of the **'Suit Land' KANYAMKAGO KAWERE 1/127**. 20. DW3 stated that he was the are chief of East Kanyamkago location and knew all the parties herein. His statement concurred with both DW1's and DW2's on the giving and subdivision of land between Mariko and the 1st Objector by the Deceased. He also made no statements or mention of the **'Suit Land’ KANYAMKAGO/KAWERE 1/127.** **CASE TRANSFERRED TO MIGORI HIGH COURT** 21.On **11th October 2017**, by consent, Succession cause no. **177 of 2014** was transferred to Migori High Court for hearing and determination in view of the fact that both the parties and the cause of action originated from Migori County. Mention date was set on **6th November 2017** before the Deputy Registrar for Directions. 22. **On 28th May 2019**, after hearing the submissions of both the Petitioner's and Objector's counsels, the court ordered that: 1. **The Grant of letters of Administration in favor of the Petitioner be revoked and the name in respect to 'The Suit Land’ remain in the name of the Deceased herein (Ibrahim Okendo Ndine)** 2. **The form P & A5 pertaining the beneficiaries' names thereby be amended to read the names of John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo and Lawrence Obonyo Okendo as beneficiaries.** 3. **A new Grant of letters of Administration thereby be issued in favor of the Petitioner and the 1st Objector.** **d) The administrators and/or any of them be at liberty to apply for confirmation of the Grant notwithstanding the provisions of section 71 of the LAW OF SUCCESSION ACT.** e. **Pending confirmation and distribution of the Estate, the parties maintain *status* *quo,* currently obtaining in terms of occupation, possession and use.** **f) Costs of the proceedings to abide the confirmation proceedings.** 23. Following the court order dated **28/05/2019** at Migori High Court, the Petitioner filed a supporting affidavit where he listed all the dependents/survivors of the Deceased but excluded the 3rd Objector on grounds that was not a beneficiary to the estate of the Deceased as read in paragraph 19 of the affidavit. He however acknowledged the issuance of the Fresh Grant in favor of the 1st Objector and himself as read in paragraph 14 of the supporting affidavit. He then stated that the 1st Objector was unwilling to enter into a compromise pertaining to the distribution of the Deceased’s estate equally amongst the 4 sons who resided or were in occupation of the 'Suit Land.’ Finally, he prayed that the court confirms the grant to expedite the distribution of the deceased's Estate in terms of the annexed schedule, and that the costs of application be paid out of the Estate. However, no consensus on the confirmation of grant was arrived at between the Petitioner and the 1st Objector in respect to the summons for confirmation of grant dated **23/08/2019**. 24. The 1st Objector (Now 1st Respondent) filed an Affidavit of Protest against the Confirmation of Grant in response to the Petitioner's supporting affidavit dated **28.05/2019**. He countered that the Deceased died Intestate without distributing or allocating property to his sons and daughters. He further protested that the application for confirmation of Grant dated 23/08/2019 had not been consented to by all the beneficiaries regarding the distribution of the estate In paragraph 10 of his affidavit of protest, he stated that the 3rd Objector who was left out as a beneficiary was adopted by the Deceased and grew up in their home where he was eventually buried leaving his family within the same property. Subject to that, the 3rd objector should get a share as a beneficiary. He further stated that in his capacity as an administrator, he had not approved of the siblings’ mode of distribution amongst them as per the law hence the protest to confirm the grant. 25. The court notes that on the **15/11/2020** the Objectors (Now Respondents) filed supplementary statements where the 1st and 2nd respondents and one Pamela Atieno Obengo (A Supplementary witness) stated as follows. The 1st respondent stated that the Deceased allocated his sons land for substance farming when he was alive and utilized the rest of the rest of his land. He also stated that the Deceased had allocated part of his land to **RUWE HOLY GHOST CHURCH** which occupied 0.5 hectares and was present to date. However, when their parents died, the Petitioner begun isolating one of their brothers who is the 3rd Respondent as he was not a direct family member. According to the 1st respondent, the Deceased adopted the 3rd Respondent from a young age and informed that the 3rd Respondent was his late brother's son hence he adopted him as his own and wanted him to receive a small share as such. With that he prayed that both the church and the 3rd respondent be considered beneficiaries to the deceased and the share of the 3rd respondent devolve to his family as he was now deceased. 26. The 2nd Respondent's supplementary statement concurred with the 1st Respondent's in all aspects. In any case she stated that during her marriage to the late Mariko (Also the Deceased's son), she found the 3rd Respondent schooling in class 3, and that the Deceased had told them **RUWE HOLY GHOST CHURCH** belonged to him and he personally allocated part of his land to the church. Likewise, she prayed that the 3rd Respondent would have an equal share of the Deceased's property as one of his sons 27. Pamela Atieno Obengo also presented a concurring statement regarding the 3rd Respondent's relationship to the Deceased. She confirmed that she was the 2nd wife to the 3rd Respondent and divulged that the 3rd respondent had told him that he was adopted by the Deceased as his own father passed away when the 3rd respondent was still young. She additionally stated that the 3rd respondent had informed her that he was to be given an equal share amongst Okendo's sons before his death. 28. On **17/09/2024**. Both the Petitioner and Objectors confirmed that they had filed their submissions through their respective counsels and prayed for a date of judgement. 29. I have carefully perused the summons, the responses, the evidence, the exhibits, the witnesses' statements and the rival submissions tendered and the dispute herein is on confirmation of the dependents/beneficiaries and distribution of the Deceased's estate amongst his dependents/beneficiaries. 30. Notwithstanding, the court finds the following as the issues for determination: a) Whether the 1st and 2nd Objectors are entitled to a share of the Estate of the Deceased? b) Whether the 3rd Objector is a dependent of the deceased and subsequently entitled to a share of the Estate of the Deceased? c) Whether RUWE HOLY GHOST CHURCH ought to be considered in the distribution of the estate of the Deceased? d) Whether one SIPROSA OSILO has a share of the Deceased's estate? **Whether the 1st and 2nd Objectors are entitled to a share of the Estate of the Deceased?** 31. On this issue, this court observes that the Estate in question is the 'Suit Land’ otherwise known as **KANYAMKAGO/KAWERE 1/127** and **NOT KANYAMKAGO/KAWERE 1/145 nor KANYAMKAGO/KAWERE 1/952**. In any case, the contention and question behind the two latter parcels of land is whether they should be regarded as part of the inheritance in the Deceased's ‘Net Intestate Estate.' **SECTION 3(1) OF THE LAW OF SUCCESSION ACT (CAP 160)** defines“Net Intestate Estate" as ***the estate of a Deceased person in respect of which he has died intestate after payment of the expenses, debts, liabilities and estate duty set under the definition of ‘Net Estate' so far as the Expenses, debts, liabilities and Estate duty are chargeable against that Estate***. Notwithstanding the manner in which the latter two parcels of land were obtained, whether purchased by the 1st and 2nd Objector's husband as they alleged, or given by the Deceased when alive as alleged by the Petitioner, there is consensus that the two parcels of land were owned as early as **1974** and are registered in the names of the 1st Objector and the 2nd Objectors husband thus they do not form part of the “Net Intestate Estate” left by the Deceased in his name Ibrahim Okendo Ndine. Moreover, the Deceased died in 1990, 16 years apart from the year whence the ownership of the two lands commenced, and the Petitioner has failed to prove with evidence and documents that the Deceased transferred or gave the lands to the 1st and 2nd Objector's husband as part of their inheritance as he alleged. Finally, prior to the Deceased passing away, he never established his wishes on how his parcels of land were to be appropriated nor confirmed that he had already given the 1st and 2nd Objectors their shares of land or inheritance to anyone. And no evidence of the same has been presented before this court. In absence of such, it can be discerned that the parcels of land owned by the 1st and 2nd Objector do not form part of the “Suit Land” 32. Having clarified that, the question remains as to whether the 1st and 2nd Objectors are entitled to a share of the “Suit Land”. This court observes and refers to the court orders given by the court through consent of both parties dated 28th May 2019 pertaining to form P& A5 amendment and the supporting affidavit presented by the Petitioner where he listed the 1st and 2nd Objectors as beneficiaries/survivors to the Deceased. There is thus a consensus that indeed the 1st and 2nd Objectors are beneficiaries of the Deceased estate and subsequently entitled to a share of the Estate. Section 26 of the Law of Succession Act (CAP 160) makes provisions for dependents not adequately provided for by will or on INTESTACY and provides that “***Where a person dies after the commencement of this Act and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependent, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependent, order that such reasonable provision as the court thinks fit shall be made for that dependent out of the deceased's net estate.“*** 33. It is indisputable that the beneficiaries mentioned in the schedule of distribution had settled in the “Suit Land” and even buried family members therein. And as such the Petitioner's case called upon the court to consider the element of prior settlement when making a decision. Their case relied upon the case of **RE ESTATE OF ANTHONY NDUIGA MUNYIRI ALIAS NDUIGA S/O MUNYIRI (DECEASED) [SUCCESSION APPEAL E015 OF 2021][2022] KEHC 139094 [KLR]** where the courts considered such an element of prior settlement in arriving at decision to persuade this court. 34. While the court has taken that into consideration, the court draws reference to a letter dated **19th June 2013** from the Chief, and listed as number 4 in the Objectors' list of Documents presented. The said letter directed one Mr. Joel Obengo Kawala to stop growing sugarcane on the suit land and stated that the chief was authorized by one Mr. John Okora Okendo (The Petitioner in this case) to stop the 3rd Objector from using the "Suit Land.” This letter in fact contradicts the Petitioner's earlier claim made in a replying affidavit dated **14/07/2014** where he stated that the Objectors' application for injunction was in fact a blackmail to the court and that he was far away from the “Suit Land. In corroboration with the later statements made by the 1st and 2nd Objectors that they had been allocated land for cultivation by the Deceased before he died and that while the 1st and 2nd Objector lived in their own lands separate from the suit land, they cultivated and grew sugarcane on the “Suit land,” it can be discerned that indeed the Deceased allocated portions of the “Suit Land” to his sons for cultivation while he retained the rest of the estate. 35. As such, the court will consider both the settlement and cultivation as prior settlement while contemplating on the distribution and arriving at its decision. **Whether the 3rd Objector is a dependent of the deceased and subsequently entitled to a share of the Estate of the Deceased?** 36. On whether the 3rd Objector is a dependent of the Deceased and subsequently entitled to inherit, **SECTION** **29** **OF** **THE** **LAW** **OF** **SUCCESSION** **ACT** **(CAP** **160)** sets out the meaning of the term “dependent” as follows: (a)...... **(b) such of the deceased's** parents, **step-parents, grandparents,**grandchildren, step-children, children whom the **deceased** had taken into his family **as** his own, brothers and sisters, **and** **half-brothers** and half-sisters, **as** were **being** maintained by the **deceased** immediately prior to his death; and (c) .... 37. This court notes that all the parties herein are in consensus that the 3rd Objector is the son to the Deceased's brother. However, there is contention as to whether he is a dependent of the Deceased. The Objectors contend that the Deceased took in the 3rd Objector in 1952 and adopted him from a young age and that they schooled together. Moreover, the 2nd Objector mentioned that she found the 3rd Objector schooling in class 3 and in the family when she got married to the late Mariko Okendo who is a son to the Deceased. 38. On the other hand, the Petitioner refutes those claims and in his written submissions, he states that the 3rd Objector was not residing on the suit property with them and only had his house built in **2018.** Upon perusal of the court proceedings dated 04/04/2024 in a sworn statement by the petitioner as DW1, he stated that the 1st Objector brought in the 3rd Objector to the ‘Suit Land’ in **2006** and built him a house there. These two statements contradict. 39. DW2 (Samwel Ndine Okendo) also gave a sworn statement in support of the Petitioner's case stating that the Deceased had never adopted the 3rd Objector, and that the 3rd Objector was brought by the 1st Objector to the plot in 2016. Likewise, DW3 who was the former chief of East Kadiang'a from 1996-2017 stated that he knew the 3rd Objector in 2016 when the 1st Objector brought him and built him a house on the “Suit Land.” 40. This court notes that while DW3 stated that he had known the Deceased as an old man in the village from when DW3 used to school, DW3 also admitted that in 1952 he was not yet born. As such he does not have the knowledge as to whether the Deceased actually adopted the 3rd Objector. Therefore, with regards to this matter, the court will only consider the statements made by the family members of the Deceased since the truth can only be deduced from their statements. Notwithstanding, the court notes the differences in the years mentioned by both DW1 and DW2 pertaining to the year when the 1st Objector allegedly brought the 3rd Objector on the suit land and built him a house. 41.This court refers to the test for dependency observed by the court in **Beatrice Ciamutua Rugamba v Fredrick Nkari Mutegi & 5 others (2016) eKLR** where the court stated that **“A dependent under section 29(b) and (c) must prove that he or she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency that counts.”** As such, the 3rd Objector must prove that he was a dependent. 42. The 1st and 2nd Objectors are family members to the parties herein and they have alluded to the fact that the 3rd Objector was brought into the family as a young boy when the Deceased's brother died. They have also alluded to the fact that they schooled together and eventually the 3rd Objector was given a portion of his property to stay on. Their written statements, affidavits, sworn statements and statements made during examination and cross examination are constant and do not change. In as much as the Petitioner claims in his written submissions that the 2nd Objector and One Pamela Atieno admitted that they never saw the 3rd Objector being brought into the home by the Deceased, both maintain that upon their arrival into the family, they found the 3rd Objector. Moreover, in the Petitioner's Replying affidavit dated **14/07/2014** at paragraph 7, albeit the land mentioned to have been allocated the 3rd Objector by the Deceased is different, it can be discerned that indeed the Deceased considered the 3rd objector as one of his own sons hence the land allocation regardless of which location the land was given. 43. Upon perusing the Petitioner's written submissions and case, I find that paragraph 5 to 10 of their submission merely challenges the capacity, procedural rules and the *locus* *standi* of the Objectors to sue and claim on behalf of the late 3rd Objector rather than challenging his claim as a dependent of the Deceased. Additionally, while DW3 in his statement had admitted that he knew the 3rd Objector in 2006, he also admitted that he was not yet born in 1952-the alleged year which the Deceased took in the 3rd Objector, hence his statement does not exclusively counter or dismiss the alleged adoptionof the 3rd Objector into the Okendo family. It is only the Petitioner and one of his brothers (Samwel Ndine Okendo) who claim with certainty that the 3rd Objector was never adopted into the family. 44. This court would like to draw the Petitioner's attention to the case of **Githere v Kimungu [1976-1985]** where the court considered a procedural error or blunder on a point of law and noted: **“the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the court should not be bound and tied by the rules, which are intended as general rules of procedure, as to be compelled to do that which will cause injustice, this is a particular case, and this a principle in which a court must remember when judicially exercising its discretionary powers.”** As such, the court cannot deny the Objectors’ applications and claims on the basis of the Petitioner's written submissions in paragraph 5 and 6 as that would cause injustice to the Objectors. 45. On the issue of *locus standi* following the amendment of form P & A5 as well as the designation of the 1st Objector as an additional administrator in the estate of the Deceased, the 1st Objector indeed has the locus standi to sue and claim on behalf of the 3rd Objector who passed away during the pendency of this suit. The court however does agree with the Petitioner that PW3 Pamela Atieno Obengo does not have the *locus standi* to litigate on behalf of the Objector as she is not an administrator to the “Suit 46. This court is further guided by the case of **James Muniu Mucheru v National Bank of Kenya Limited (2019)eKLR** where the honorable appellate judges held that: “ **Indeed, it is settled law that in civil cases the standard of proof is on balance of probability. This is in effect to say that courts will make a finding based on which party's version of the story is more believable...”** In this case, the Petitioner has failed to exclusively discredit the 3rd objector’s claim of dependency, the court has noted inconsistency in their statements pertaining to the year which the 3rd Objector first set foot on the “Suit Land.” Likewise, the Objectors have not availed material evidence to support their claims that the 3rd Objector was indeed adopted and cared for by the Deceased. However, the Objectors have maintained their statements constant to the end be it in the written statements, affidavits, summons, sworn statements or statements made during examination and cross examination thus their version of the story is more believable. In any case, some versions of the Petitioner’s story add credit to the Objectors' claims such as the 3rd Objector being allocated land by the Deceased. This court therefore finds the 3rd Objector a dependent of the Deceased. 47. Having established that the 3rd objector is a dependent, the court is thus guided by Section 28 and 29 of the law of Succession Act (CAP 16) to make provisions for the 3rd Objector as a dependent of the deceased subject to the discretionary powers vested therein the provisions. **Whether RUWE HOLY GHOST CHURCH ought to be considered in the distribution of the estate of the Deceased?** 48. Having perused both the Objectors’ and Petitioner's written submissions and cases. This court observes that all parties herein are in consensus that **RUWE HOLY GHOST CHURCH** was allocated a portion of land by the Deceased. Additionally, all parties are in consensus that the church be included as a beneficiary, and be entitled to the 0.5 Ha of the Estate which they were allocated by the Deceased. **Whether one SIPROSA OSILO has a share of the Deceased's estate?** 49. This court notes that none of the Parties herein claim on behalf of SIPROSA OSIRO who is alleged to be the daughter of the Deceased and married in Tanzania. The court also notes that the said individual never filed any documents to challenge the Summons for confirmation of Grant and neither has she donated a Power of Attorney to anyone to litigate on her behalf. At the same time, she has not filed any documents in court since the beginning of this matter. In their written submissions the Objectors only mention that the alleged daughter was not included in Form P & A5 and make no further mention of her. There has not been placed any evidence before this court confirming that she renounced her right to inherit the deceased estate. Since she has been conformed as a daughter of the estate, the court will make therefore provisions for he accordingly. 50. The following final orders do hereby issue:- 1. **The form P & A5 pertaining the beneficiaries names be amended to read the names of John Okora Okendo, Thomas Bodhi Okendo, Lisper Aoko Otieno, Samwel Ndine Okendo, Lawrence Obonyo Okendo and Joel Obengo Kawala as beneficiaries.** 2. **RUWE HOLY GHOST CHURCH be considered in the distribution of the Deceased Estate and be allocated their share of 0.5 Ha.** 3. **The remaining parcel of land in the Deceased’s Estate be equally distributed to the 6 beneficiaries listed in form P & A 5 and Siprosa Osili and devolve to their respective families where the beneficiary is dead.** 51. Orders accordingly. Judgement read, signed and delivered virtually at Migori on 9th July 2026 Delivered in the presence of Lady Justice A. Ongi’injo Judge