https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/531

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA** **MAGISTRATES COURT FAMILY** **IN THE MATTER OF THE ESTATE OF KEVIN INDANGASI LUMUMBA (DECEASED)** **CYNTHIA MUSINZI KEVIN & ANOTHER..........................OBJECTORS/APPLICANTS** **VERSUS** **CATHERINE MIKALISTI SHITAMBASI & ANOTHER......PETITIONERS/RESPONDENTS** **RULING** **Introduction** 1. Before this Court is the Summons for Revocation and/or Annulment of Grant dated 14th November 2025 brought under Section 76 of the Law of Succession Act. The Objectors seek revocation of the Grant of Letters of Administration Intestate issued to the Petitioners and confirmed on 9th January 2025, an order declaring void all actions undertaken pursuant thereto, and costs of the application. 2. The application is supported by the joint affidavit of Cynthia Musinzi Kevin and Patrick Lumumba Maikuva sworn on 14th November 2025. The Petitioners opposed the application through a Replying Affidavit sworn by the 2nd Petitioner, Amongin Everlyn Harriet, on 16th March 2026 together with written submissions. 3. The Court has carefully considered the application, affidavits and the written submissions filed by both parties. The Objectors' Case 1. The Objectors contend that the confirmed grant ought to be revoked because: the 1st Objector is the daughter of the deceased while the 2nd Objector is his father; they are beneficiaries of the estate but were deliberately omitted from the petition; the petition was secretly filed without their knowledge or consent; the grant was obtained through concealment of material facts; the succession proceedings were instituted in Mombasa whereas the deceased, the beneficiaries and the estate property are all connected to Kakamega County; the proceedings were therefore defective in substance and the grant should be revoked under Section 76 of the Law of Succession Act. The Petitioners' Case 1. The Petitioners oppose the application and maintain that: there is no evidence proving that the 1st Objector is the daughter of the deceased; although the 2nd Objector alleges to be the deceased's father, he has not demonstrated that he qualifies as a dependant under Section 29 of the Law of Succession Act; the petition was duly advertised in the Kenya Gazette and therefore was never filed secretly; the deceased's last known residence was Mombasa and the court therefore possessed jurisdiction; no fraud or concealment has been proved; if the Court were eventually satisfied that the 1st Objector is indeed a child of the deceased, the appropriate remedy would be her inclusion as a beneficiary rather than revocation of the grant. **Issues for Determination** 1. From the pleadings and submissions, the Court finds that the following issues arise: 2. Whether this Court lacked jurisdiction to entertain the succession proceedings. 3. Whether the Objectors have established that they are beneficiaries whose omission amounted to concealment of material facts. 4. Whether the Grant should be revoked under Section 76 of the Law of Succession Act. 5. Who should bear the costs. **Analysis** Whether this Court lacked jurisdiction 1. The Objectors submit that because the deceased hailed from Kakamega, the beneficiaries reside in Kakamega and the estate property is situated there, the Mombasa Court lacked territorial jurisdiction. 2. The Petitioners, however, maintain that the deceased's last known residence was Mombasa, that he died in South Sudan and that jurisdiction properly lies before this Court. 3. The parties devoted substantial submissions to this issue. 4. However, a careful reading of the Summons for Revocation shows that the application principally complains that the grant was obtained through concealment of beneficiaries and by filing the petition secretly. Although the supporting affidavit mentions Kakamega as the residence of the parties, the substantive relief sought is founded upon Section 76 of the Law of Succession Act rather than an objection to territorial competence. 5. More importantly, neither party placed before this Court sufficient evidence establishing the deceased's last known place of residence. The Court merely has competing averments. 6. Jurisdiction cannot therefore be determined purely upon conflicting affidavit evidence unsupported by documentary proof. 7. Consequently, this Court is unable to hold that the proceedings are defective solely on account of territorial jurisdiction. That ground therefore fails. Whether concealment of material facts has been proved 1. Section 76(b) empowers the Court to revoke a grant obtained by concealment of material facts. The burden rested upon the Objectors to establish: that they were beneficiaries entitled to disclosure; and that the Petitioners knowingly concealed them. The 1st Objector 1. The 1st Objector asserts that she is the deceased's daughter. The Petitioners deny this assertion and contend that no evidence has been produced to establish paternity. Having reviewed the material before Court, the Court notes that apart from the bare deposition contained in the supporting affidavit, no birth certificate, acknowledgement, DNA evidence, Chief's letter or any other documentary evidence has been annexed demonstrating that Cynthia Musinzi Kevin is indeed a child of the deceased. 2. The Court cannot determine paternity merely from assertions contained in affidavits. The allegation therefore remains unproved. The 2nd Objector 1. Patrick Lumumba Maikuva claims to be the deceased's father. The Petitioners do not seriously dispute that relationship but argue that a parent does not automatically inherit. The Court agrees. 2. Section 29 of the Law of Succession Act distinguishes between children and parents. Parents only qualify as dependants where they were being maintained immediately before the deceased's death. No evidence whatsoever has been produced demonstrating that the 2nd Objector depended upon the deceased for maintenance immediately before death. The supporting affidavit does not even allege dependency. 3. Consequently, the Court cannot conclude that the 2nd Objector qualifies as a dependant entitled to inherit under Section 29. Accordingly, concealment of beneficiaries has not been established. Whether fraud has been established 1. Fraud is a serious allegation. It must not only be pleaded but strictly proved. The Objectors allege that the petition was secretly filed.The Petitioners have exhibited the fact that the petition was advertised in the Kenya Gazette, thereby inviting objections from any interested persons. Publication in the Kenya Gazette is the statutory mode through which notice is given to the public. 2. The mere fact that the Objectors were unaware of the proceedings does not necessarily demonstrate fraud where the lawfully prescribed mode of publication was complied with. Equally, the allegation that the Petitioners intended to disinherit the Objectors remains unsupported by independent evidence. The Court therefore finds that fraud has not been established to the standard required by law. Whether the Grant should be revoked 1. Revocation of a confirmed grant is a drastic remedy. The Court exercises that jurisdiction cautiously because revocation unsettles completed succession proceedings and may affect third-party rights. The grounds under Section 76 must therefore be clearly established. 2. In the present case: paternity of the 1st Objector remains unproved; dependency of the 2nd Objector has not been demonstrated; concealment has not been established; fraud has not been proved; want of jurisdiction has likewise not been demonstrated. Accordingly, the threshold for revocation has not been met. The application therefore fails. Obiter Dictum 1. Although the application fails, the Court considers it appropriate to make one observation. Should the 1st Objector subsequently obtain credible evidence establishing that she is indeed a biological child of the deceased, nothing in this ruling prevents her from moving the appropriate court for suitable relief founded upon such evidence. Succession proceedings ought always to ensure that all lawful beneficiaries participate in administration of an estate. Conversely, where a party asserts beneficiary status, such status must be proved through cogent evidence rather than mere allegations. 2. Similarly, a parent claiming entitlement under Section 29(b) of the Law of Succession Act must establish actual dependency immediately before the deceased's death. **Orders** 1. Accordingly, the Court makes the following orders: 2. The Summons for Revocation and/or Annulment of Grant dated 14th November 2025 is dismissed. 3. The Grant of Letters of Administration Intestate issued to the Petitioners and confirmed on 9th January 2025 shall remain in force. 4. There shall be no order revoking or annulling the grant. 5. Each party shall bear their own costs of the application, this being a family succession dispute in which preservation of family relationships is desirable. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** ............................................ **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**