https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10249

In re Estate of Khadera (Deceased) (Succession Cause 68 of 2004) [2026] KEHC 10249 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10249 (KLR) Republic of Kenya In the High Court at Busia Succession Cause 68 of 2004 SM Mohochi, J July 13, 2026 IN THE MATTER OF THE ESTATE OF THE LATE HEZEKIAH ADUNDO KHADERA (DECEASED) Between Stanlus Wabwire Adundo Administrator and Alex Sande Odhiambo Appellant Ruling 1.The Application before court is a summons for revocation of grant dated 7th November 2025 filed pursuant to Section 76(e) and 66 of the Law of succession Act. 2.The Applicant seeks the following reliefs;I.That the grant of letters of administration made to Stanlus Wabwire Adundo on 3rd October, 2004 be recalled and revoked and or annulled.II.That the honorable court be pleased to issue a new grant of letters of Administration to Alex Sande Odhiambo.III.That the honorable court be pleased to recall certificate of confirmation of grant Issued to Stanlus Wabwire Adundo on 3rd October, 2004 for orders of being rectified to confirm with the orders of 5th May, 2007.IV.That a rectified certificate of confirmation of grant be issued to distribute LR No. Bukhayo/Nasewa/639 as follows:.a.Alex Sande Odhiambo..... ....1 ½ Acresb.Yophan Wabwire Odhiambo 2 Acresc.Stephen Opondo Odhiambo.1 1½ Acresd.Taabu Odhiambo.... .....1 AcresV.That Stanlus Wabwire Adundo was just the administrator of Hezekiah Adundo Khadera who had stood in as the administrator of Jeremiah Odhiambo Yairo as per the certificate of confirmation of grant dated 10m August, 1994.VI.That Stanlus Wabwire Adundo cannot now claim to be a beneficiary this parcel all we know is that he is an administrator.VII.That unless the orders sought herein are granted the estate of the deceased at the risk of being wasted.VIII.That Stanlus Wabwire Adundo has gone ahead to divide the LR N Bukhayo/Nasewa/639 to divide it amongst his sons and daughters as per his will dated 3rd September, 2020 3.The Applicant in his supporting Affidavit depones that, he is the son of the late Jeremiah Odhiambo Yairo who died domiciled in Kenya on 10th August, 1994. 4.That when his father died and Hezekiah Adundo Khadera came in as the administrator of the estate and the whole estate was given to him. 5.That, when Hezekiah Adundo Khadera also died and his son Stanlus Wabwire Adundo took out letters of administration. 6.That, Stanlus Wabwire Adundo went on and confirmed the grant on 5th May. 2007 went on to share out the portion for the applicant and his brothers as beneficiaries of Bukhayo/Nasewa/268 and whereas the son of Jezekiah want a share thereof. 7.That, Stanlus Wabwire Adundo having allocated the portions to the family of the late Jeremiah Odhiambo Yairo and thereafter he went on to allocate the land LR No. Bukhayo/Nasewa/639 through his will dated 3rd September, 2020 as follows: -a.Levi Linus Wabwire Adundo(Son) 1/2 ACREb.Picki Douglas Adundo(Son).. ..1/2 ACREc.Elis Yiga WaMirikwa Wabwire(Son). 1/2 ACREd.Margaret Auma Wabwire(Wife)e.Janerosf Okwero Adundo(Daughter).f.Gaudencia Juma Adundo (Daughter)g.Florence Maamkio Adundo (Daughter)h.Tahamaki Mafa Adundo (Daughter)i.Zilpa Bahati Adundo (Daughter)..to hold the rest of Bukhayo/Nasewa/639 in common. interest as a gift 8.This matter proceeded by way of Viva voce evidence on the 03/02/2026 with the Applicant and the Administrator testifying. The Applicant’s Case 9.PW 1 Sande Alex Odhiamb adopted his sworn supporting affidavit dated 7/11/2025. 10.In cross-examination by Mr. Ogola Advocate the Applicant admitted that, the administrator is a son of Hezekiah Adundo. That his father is Jeremiah Odhiambo Yairo who died in Uganda in 1983. 11.That Rasto Kamunde Ocholi is not a member of his family. That the deceased herein (Hezekiah) got representation to the estate of the late Jeremiah (his father). Hezekiah then died. Stanslaus (the Administrator) then got representation 12.That Stanlaus did not tell him that he distributed the estate and he did not obtain title deeds for the beneficiaries. 13.That they sold a small piece of land relocated to Uganda after tha and never signed a transfer form. 14.That Rasto was communicating with his aunt, the late Catherine Achola anmd he never knew Fridah Onyonga. 15.He further admitted to have acquired Ugandan citizenship and recently returned to Kenya and obtained National Identity card. 16.In re-examination by mr. ouma the Applicant reiterated being a son of Jeremiah Odhiambo Yairo and that the deceased herein (Hezekiah) took out letters of administration of estate of his father (Jeremiah). 17.He was aware that Hezekiah (deceased herein) died and that the Administrator Stanslaus came in to administer estate of Hezekiah. Stanslaus but did not give everyone their share of the estate of Hezekiah. him and others took a small piece of land, due conditions, the registration of Hezekiah Adundo. They went to Uganda and are now back to Kenya, to stay. Administrators Case 18.DW 1 Stanlus Wabwire Adundo adopted his sworn Affidavit dated 9/12/2025.He was of the view that he concluded the probate and distributed the estate as per the confirmed grant. 19.In cross-examination by mr. ouma he admitted knowing Jeremiah Odhiambo who died in 1983. That Hezekiah Adundo (Deceased herein) is his father who had been administrator estate. 20.That Jeremiah had children – 4 sons – Alex Sande Odhiambo, Elizaphan Odhiambo, Stephen Opondo Odhiambo, Taabu Odhiambo and Hezekiah had the land of Jeremiah until he died. 21.That his certificate of confirmed grant did not mention the names of Alex, Elizapan, Stephen and Taabu. And It was Rastoo who brought the succession before his father Hezekiah then took over the succession. 22.That Rasto had taken the land of Jeremiah and Hezekiah did not file succession, he objected. 23.That, there are court proposals to show how he distributed the estate. The land was in the Deceased’s Name. 24.That the land LR No. Bukhayo/Nasewa/639 was not surveyed before succession. That he did not leave out anyone. Some people were left out in the certificate of confirmation. That they did survey after confirmation. 25.That, the certificate of confirmation shown to him is not the full one and there is another which distributed the property/estate to everyone. 26.That the certificate you show him assigns him 2 ½ acres and the Applicant 1 acre. That, there was a later certificate of confirmed grant and everyone got a share. Some shares were omitted of Stephen and Taabu. 27.In re-examination the Administrator admitted that the late Jeremiah is a child of Hezekiah. Hezekiah was brother of Jairo. Alex and his siblings are younger than Hezekiah. 28.Before Hezekiah took over the administration, grant was in the name of Rasto Kamunde Ocholi. That they are not related to him as he is from a different clan. That Hezekiah and him challenged the grant made to Rasto. Objector's/Applicant's Written Submission Dated 6th February 2026 29.The objector/applicant relied on his supporting affidavit dated 7th November 2025 during the hearing of this case it came out so clearly that the late Jeremiah Odhiambo Yairo was the registered owner of LR.NO.Bukhayo/Nasewa/639, It also came out clearly that after the demise of Jeremiah Odhiambo Yairo, Hezekiah Adundo Khadera took out letters of administration for the estate of Jeremiah Odhiambo Yairo. 30.Thereafter Hezekiah Adundo Khadera who had his own property known as LR.No. Bukhayo/Nasewa/268 however got registered on the estate of Jeremiah Odhiambo Yairo as the sole heir thereof. 31.When Hezekiah Adundo died his son Stanlus Wabwire Adundo took out letters of administration and shared out the estate of the late Hezekiah to himself and to his own children plus only Alex Sande Odhiambo with 1½ acres only leaving out Elizaphan WabwireOdhiambo, Stephen Odhiambo Opondo and Taabu Odhiambo without a share from the estate. 32.That, it is upon that background that the Objector/Applicant submits that, the certificate of confirmation of grant issued to Stanlus Wabwire Adundo be reviewed to include the children of Jeremiah Odhiambo Yairo as beneficiaries of LR.NO.Bukhayo/Nasewa/639. 33.Reference is made in the case of Albert Imbuga Kisigwa v Recho Kaval Kisigwa [2016] KEHC 1528 (KLR): Established that revocation is a discretionary power exercised judiciously upon evidence of wrongdoing, such as material non-disclosure of beneficiaries. This is what exactly happened to the petitioner herein he refused to disclose the true facts to court hence disinheriting the children of Jeremiah. 34.Furthermore, In re Estate of Prisca Ong'ayo Nande (Deceased) [2020] eKLR: Expounded on the grounds for revocation under Section 76, noting it can be done on the court's own motion or by application. In re Estate of Juma Omwanda (Deceased) (2025): Clarified that a revocation application should target the confirmation orders (under Section 76) rather than just the certificate of confirmation. In Mbae V Kathomi & 2 Others[2025] KEHC 4600: Highlighted that fraudulent concealment of beneficiaries or assets is a valid ground for revoking a grant. In re Estate of Barkibel Kibor [2025] KEHC 3880: Emphasized that failure to produce an Inventory or account of administration, or failure to distribute assets within the required time, is cause for revocation. 35.The objector/applicant submits that, the respondent is the administrator of the estate of Hezekiah which had the property for the beneficiaries of the late Jeremiah as such this crucial Information should not be hidden away from court as the respondent did. 36.That the respondent admitted to court having left out the children of the late Jeremiah and that he had added one Alex Sande Odhiambo alone when question where Elizaphan WabwireOdhiambo, Stephen Opondo Odhiambo, Taabu Odhiambo he said that he left them as they had moved to Uganda which fact was dismissed by the applicant. 37.The objector/applicant submits that since the respondent did not disclose the fact that the estate his father was administering was to vest to the applicant and his brother’s which fact was not disclosed to court as per the law required. Administrator/Petitioner/Respondent's Written Submissions (On the Application for Objection dated 7th November, 2025) Dated 16th February 2026 38.The Petitioner/Respondent (Stanlus Wabwire Adundo) opposes the Application for Revocation of the Grant of Representation issued on [5th May 2007] filed by the Objector/Applicant (Alex Sande Odhimbo). 39.That, based on the Applicant's Application and ORDERS sought therein, the Petitioner/Respondent suggest that, the following issues arise for determination: Whether Summons for Revocation of Grant dated 7th November, 2025 are merited? 40.That, Section 76 of the Law of Succession Act Cap 160, Laws of Kenya, provides for grounds for revocation of grant. "A grant of representation whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by an interested party of its own motion:“a)That the proceedings to obtain the grant were defective in substance:b)That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;c)That the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or Inadvertently.d)That the person to whom the grant was made has failed after due notice and without reasonable cause either;e)That the grant has become useless and inoperative through subsequent circumstances." 41.That Section 76 was clearly expounded on In Re Estate of Prisca Ong'ayo Nande (Deceased) 120201 eKLR where it was stated that:“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 gran 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 persong 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 Intestale was made instead of a grant of probate, or vice versa. 42.It could also be that the process was marred by fraud and misrepresentation or concealment of mattes 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 falls 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 requined. 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." 43.Further reliance is placed on the case of Estate of William Kariml Ngeru(Deceased) in which it stated:“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 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." 44.That the proposed mode of distribution of the estate of the deceased is undisputed because that's precisely how it was distributed. again, on cross-examination, the objector admitted that his father was the petitioner/respondent's brother which is a fact. the objector also confidently admitted that all the beneficiaries, him inclusive, were given their share/portion which they sold off their entire share measuring approximately 4.4 acres hived off from the whole Parcel LR. Bukhayo/Nasewa/639 Measuring Approximately 5.5 Acres to one Galcano Okoth Adundo who paid the Balance of the Purchase Price of Ksh. 13,000/- on 1 September 2010 before relocating to uganda where they are currently residing. The Land Sale Agreement of 2010 Executed and Witnessed by Ashioya & Company Advocates where the Objector (Alex Sande Odhimbo) and other Beneficiaries (Godfrey Taabu Ojiambo, Stephen Opondo Ojiambo and Elizaphan Ojiambo) who do not object to the manner the Estate was distributed signed the said Agreement leaving only the share allocated to the Petitioner/Respondent. 45.That the Estate of the Deceased, Parcel LR. Bukhayo/Nasewa/639, was Originally the Property of the Grandfather of ALL the Beneficiaries, one Ochodokoli, who had three (3) Sons namely:1.Mirikwa who bore Julius Wabwire. Yairo Omoga and Jeremiah Odhiambo Yairo (Objector/Applicant's father).II.Odunga who bore Nyongesa, Virginia Nekesa and Hezekiah Adundo Khadera (Petitioner/Respondent's father).III.Khadera bore Julia Akello, Tabitha Nasirumbi and Leonida Nerima. 46.That the Petitioner/Respondent obtained the Consent of the Family Members/Beneficiaries to become the Administrator of the Estate of the Late Hezekiah Adundo Khadera (Deceased). And he encompassed the names of all the Dependants Beneficially entitled to the Deceased's Estate in the list of Beneficiaries, while administering the Deceased's Estate. 47.That the Petitioner/Respondent captured all the Deceased's Property in the ASSETS SECTION on the P & A FORM 5 Including Land Parcel No. Bukhayo/Nasewa/639 measuring Approximately (5.5) Acres. The Beneficiaries signed the Farm 38 (r.26(2)) thus Consent to the Making of Grant as required by Law and the same are filed before this Honourable Court. 48.That the Petitioner/Respondent's Will dated 3rd September 2020 is specifically on the Approximately 21½ Acres which is in accordance with the Mode of Allocation to his Children whereas 4.4 Acres share Allocated to the other beneficiaries namely, Godfrey Taabu Ojiambo, Stephen Opondo Ojiambo and Elizaphan Ojiambo out of the 5.5 Acres as a whole of LR. Bukhayo/Nasewa/639. Which means that the remaining Portion went to the Petitioner/Respondent herein. 49.That there is an Application dated 19th November 2013 for the Rectification of Grant issued on 3rd October 2004 which sought for the allocation of 2 Acres to the Petitioner/Respondent instead of 1 Acre. A Rectified Grant was issued on 5th May 2007 in favour of the Petitioner/Respondent. The Mutation Form included the name of the Objector/Applicant who went into hiding in Uganda making it difficult to process the Transfer of the Parcels to the respective owners. 50.That, the Petitioner/Respondent has good and justifiable intention to obtain the Title Deeds for all Beneficiaries before the Transfer is effectuated to the Purchasers. A Point to note is the fact that the Petitioner/Applicant's father one, Hezekiah Adundo Khadera which he bought, had another Parcel LR. Bukhayo/Nasewa/268 which was measuring Approximately 4 Acre and the Stanlus Wabwire Adundo conducted a Succession Process before acquiring it and the same Parcel is not in dispute herein. 51.That the Objector/Applicant, despite being given his share, wants to dispossess the Petitioner/Respondent as stated in Paragraph Six (6) of the Summons since he knows that he and his Colleagues sold all their shares before relocating to Uganda where the others are and he is back to dispossess the Petitioner/Applicant with the help of the Local Administration before returning to Uganda. 52.That the Objector/Applicant is a very dishonest man that he even said a lie through his teeth in Paragraph Two (2) of his Affidavit in Support of his Summons that his father Jeremiah Odhiambo Yairo died in Kenya on 10th August 1994 yet his father did while Domiciled in Uganda in 1983 which he himself admitted during Cross-Examination. He admitted knowing one Intermeddler Rasto Kamunde Okoli but denied not maintaining Constant Communication with while in Uganda yet he had a Land Sale Agreement with while residing in Uganda and at the same time plotting to dispossess the Petitioner/Respondent of his entitlement with the assistance of the Local Administration and the Land Registrar. Busia County. The Documentary Exhibits therein show how the Petitioner/Respondent tried many times to singlehandedly settle disputes and wade off Intermeddler/Land Grabbers from the Estate of the Deceased. 53.Further, Issuance and confirmation of grant in favour of the Respondent on 5th May 2007 was in accordance with the well set out procedure. Section 66 of the Law of Succession Act, Cap 160, Laws of Kenya states that. "When a deceased has died intestate, the court shall, save as otherwise &expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference: -(a)surviving spouse or spouses, with or without association of other beneficiaries:(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V(c)the Public Trustee: and(d)creditors: 54.In view of the above analysis, the grant was validly obtained, the proceedings were regular, and no fraud or concealment occurred. Respondent often argue that the applicant Backs locus standi, the allegations are baseless, or the administration is proceeding properly. Contrary to the applicant's claims, the petitioner did not conceal the existence of other heirs; there was no Concealment of Material Facts. 55.The Administrator/Respondent has diligently managed the Estate and is not in breach of duty. There was no Fraud and if it was a dispute over distribution, it should have been handled at the Confirmation stage, not Revocation. 56.That the Objector/Applicant delayed in filing the Application, knowing about the Grant which he is the only beneficiary objecting when he conscientiously signed the consent document after he deemed it appropriate to the mode of distribution, thus equity should not assist them. the grant was legally and properly obtained in accordance with the law of succession act. all known beneficiaries were disclosed, and consent was obtained or deemed appropriate. 57.The Court ought to consider the fact that it is only one Beneficiary, Alex Sande Odhiambo, who is today challenging the mode of distribution even after signing or providing his conscientious consent to the mode of distribution which the other beneficiaries are comfortable with till today over nineteen (19) years later. in view of the foregoing and in conclusion herein, we humbly submit that, the Objector/Applicant's Application for Objection lacks merit, as the Objector/Applicant has failed to satisfy this Honourable Court with evidence tangible enough to support his claim, and as such has lowered the value of the Orders sought. It is therefore, in the interest of Justice that, the Objector/Applicant's Application for Objection be dismissed with costs. Analysis and Determination 58.I have Considered the pleadings by the parties and I do find no merit in this motion. 59.The Applicant/Objector was not a dependant of the deceased, the persons who have proper ‘locus standi’ in a succession cause are the legal heirs/beneficiaries of the estate. The Applicant would only qualify as an interested party if he was able to demonstrate that he was a dependant of the Deceased in terms of Section 29 of the Law of Succession Act. 60.This then means the Applicant cannot be an administrator of the estate of the deceased as he proposes. 61.I equally find no basis for rectification of a grant confirmed almost two decades ago. 62.If the Objector/Applicant had claims with the deceased he ought to have brought forth the same on time and his delay in moving court remains un-explained. 63.I further find that no evidence has been proffered to satisfy on a balance of probability basis for revocation of grant. 64.The applicant equally subsumed a prayer of rectification of grant which equally fails as Rectification is limited strictly to correcting minor, formal errors without fundamentally altering the substance of the estate's distribution and the proposed rectification sought introduces the Objector and three other strangers to this estate. 65.The upshot is that, the summons for revocation of grant dated 7th November 2025 is without merit and the same is accordingly dismissed with costs. 66.I am inclined to award the costs to the Respondent.It is so ordered. DATED, SIGNED AND DELIVERED AT BUSIA ON THIS 13TH DAY OF JULY, 2026.........................................MOHOCHI S.M.PRESIDING JUDGE.QuorumMr. Ogolla for Administrator/Respondent.B.M. Ouma for Objector/Applicant