https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10386

In re Estate of Boit (Deceased) (Succession Cause E072 of 2024) [2026] KEHC 10386 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEHC 10386 (KLR) Republic of Kenya In the High Court at Eldoret Succession Cause E072 of 2024 RN Nyakundi, J July 14, 2026 IN THE MATTER OF THE ESTATE OF DAVID KIMUTAI BOIT (DECEASED) Between Albert Kipchirchir Lagat Applicant and Margaret Jepkemboi Boit 1st Respondent Raymond Boit 2nd Respondent Ruling Background 1.On 10th June 2024, in the matter of the estate of David Kimutai Boit one Raymond Boit and Margaret Jepkemboi Boit petitioned for the making of a grant of administration which was subsequently issued on 15th day of November 2024 contextualized as follows:Be it known that on the ......15th, day of......November,..2024 Letters Of Administration Intestate Of All The Estate Of David Kimutai Boit (Deceased) late of Kaptebee Who Died Domiciled In Kenya on the 12TH Day Of July, 2023 at Kaptebee which by law devolves to and vests in his personal representative were granted by this Court to Raymond Boit And Margret Jepkemboi Boit Of P.o Box 683-30100, Eldoret they having undertaken faithfully to administer such estate according to law and to render a just and true account thereof whenever required by law so to do. 2.This grant of letters of administration was followed with summons for confirmation of grant dated 3rd day of January 2025 in which it was stated that the deceased was survived of the following assets:Kaptagat/Lotonyok(Ngelel Tarit)/59Eldoret Municipality Block 9/1667Eldoret Municipality Block 13/379Eldoret Municipality Block 13/379Ndalat Settlement Scheme 3.It is also in record that deceased is stated to have survived with the following legitimate beneficiaries according to the filings in Court dated 5th February 2025 namely:Rose Irene BoitRaymond BoitAlbert Norman Kipkorir BoitMargaret Jepkemboi Boit 4.This Court being persuaded that all the necessary procedural requirements have been met exercised it discretion on 7th of February 2025 by issuing a certificate of confirmation of grant which formed the basic structure on the transmission of the estate to the beneficiaries as herein under stated in that grant:I hereby certify that the above written granny of representation to the estate of the late David Kimutai Boit as alias David Boit Deceased issued to the Raymond Boit and Margaret Jepkemboi Boit therein named has this 15th November 2024, been confirmed by the Court pursuant to the provisions of Section 71(1) of the Law of Succession Act.Issued at Eldoret this 7th day of February 2025 Property Heirs Shares Kaptagat/Lotonyok(Ngelel Tarit)/59 Margaret Jepkemboi BoitRaymond Boit To be shared equally Eldoret Municipality Block 9/1667 Raymond BoitAlbert Norman Kipkorir BoitMargaret Jepkemboi Boit To be shared equally Eldoret Municipality Block 13/379 Raymond BoitAlbert Norman Kipkorir BoitMargaret Jepkemboi Boit To be shared equally Ndalat Settlement Scheme/510 Raymond BoitAlbert Norman Kipkorir BoitMargaret Jepkemboi Boit To be shared equally Money in the Equity BankAccount 03xxxxxxxxxx51 Eldoret Branch in the names of David Boit Margaret Jepkemboi BoitRaymond Boit To be transferred to a joint account held by the two heirs 5.This certificate of confirmation of grant as per the law establish in Kenya is supposed to have been fully complied with and the shares transmitted to the beneficiaries and thereafter liquidate the estate by dint of filing a probate account by the Administrators. However, from the subsequent application it appears the Administrators are yet to comply with the timelines as outlined in the Law of Succession Act. 6.The first application for this Court to consider is on rectification of a grant which is provided for under Section 74 of eth Law of Succession Act and Rule 43 of the Probate and Administration Rules. This is the intent of the legislative scheme in rectification of legal instruments and in our case the certificate of confirmation of grant. Thus:Errors in names and descriptions, or in setting forth the time and place of the deceased’s death, or the purpose in a limited grant, may be rectified by the Court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”Rule 43(1) provides as follows:“Where the holder of a grant seeks pursuant to the provisions of Section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place of death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was made.” 7.This Court considered the application which was filed on 4th March 2025, it was all about the name of the deceased which apparently during his lifetime had various aliases namely David Kimutai Boit alias David Boit alias George David Kimutai Boit. 8.From the perspective of the Court, the summons for rectification of the grant is considered based on the provision of Section 74 of the Law of Succession Act and Rule 43 of the Probate and Administration Rules and it became apparent that there is merit to exercise discretion in favour of rectification of the certificate of confirmation of the grant which was duly actualized on the 5th day of March 2025. That issue was therefore settled in so far as the law is concerned. That was not the end of the interlocutory applications post confirmation of grant in favour of the estate of the deceased as can been seen shortly from the subsequent applications: 9.In the first instance, it is a summons for revocation and stay of execution of the Certificate of Confirmation of Grant dated 7th February 2025 duly dated 10th of March 2025 in which the following orders were applied for by the applicant:a.Spent.b.That pending the hearing and determination of this Summons, this Honourable Court be pleased to grant an order staying the execution, implementation, and/or enforcement of the grant of letters of administration intestate issued to Raymond Boit and Margaret Jepkemboi Boit on 7th February 2025.c.That pending the hearing and determination of this Summons, this Honourable Court be pleased to issue an order restraining and/or barring Raymond Boit and Margaret Jepkemboi Boit, whether by themselves, their agents, servants, or any other person acting under their instructions, from intermeddling, selling, transferring, leasing, disposing of, or in any manner whatsoever dealing with any properties forming part of the estate of the deceased.d.That this Honourable Court do revoke or annul the Certificate of Confirmation of Grant dated 7th February, 2025 issued to the Respondents.e.That this Honourable Court do issue such further orders and directions as it may deem just and fit.f.That the costs of this Summons be provided for. 10.​The Application is based on the grounds set out herein:-a.​As the record shall bear out, the Respondents filed the Petition herein and subsequently this Honourable Court issued a Certificate of Confirmation of Grant dated 7th February, 2025.b.However, the Applicants contend that the Grant should be revoked or annulled because the proceedings to obtain the grant were defective in substance and that the grant was obtained fraudulently by the making of a false statement and exclusion of other family beneficiaries, myself included.c.Furthermore, the grant was obtained by means of an untrue allegation of a fact because the second respondent is not a beneficiary within the meaning of the succession Act, and by law does not benefit from the estate of the deceased.d.Essentially, the two Administrators colluded in preparation of succession proceedings to the exclusion of myself and other family members.e.That the applicant has only come into light of this succession matter when he learnt that the Administrators have immediately started to begin the process of subdividing and selling off the properties.f.Unless this Honourable Court potently and urgently intervenes to grant the orders sought herein, the Applicant shall suffer irreparable losses and damages and a grave miscarriage of justice.g.Significantly, the above reasons singularly and collectively underscore the urgency of this Summons and the need to expedite the same soonest.h.In the premises, it is only fair and in the interest of justice that the Application herein be heard urgently and orders issued as prayed. 11.​Herein below is the supporting affidavit sworn by Albert Kipchirchir Lagat of who stated as follows:-a.​THAT I am the Applicant herein, a biological son of the late David Kimutai Boit, and a rightful heir to his estate. I swear this Affidavit in utter distress and protest against the blatant fraud, deceit, and gross injustice orchestrated by the Respondents in obtaining the grant of letters of administration.b.That the Respondents, in a deliberate and well-calculated scheme, filed a Petition for Letters of Administration Intestate in respect of the deceased's estate while maliciously and unlawfully excluding me and other rightful heirs. Consequently, this Honourable Court was misled into issuing a Certificate of Confirmation of Grant dated 7th February 2025.c.That the said grant was procured fraudulently and in bad faith, in blatant violation of the Law of Succession Act (Cap 160), as the Respondents knowingly and dishonestly concealed material facts, deliberately misrepresented their claims, and maliciously discriminated against rightful beneficiaries, including myself.d.That the entire process was a conspiracy to defraud the rightful heirs of their lawful inheritance, carried out through deception and deceit, with the intent to illegally appropriate the estate for their own selfish benefit.e.That most outrageously, the Second Respondent is not even a legitimate beneficiary within the meaning of the Law of Succession Act (Cap 160) and, by law, has no rightful claim to any portion of the deceased's estate. Yet, through collusion and dishonest means, she has been unlawfully included as a beneficiary, while the genuine heirs have been completely sidelined.f.That the Respondents, acting in concert with the sole intention of depriving me and other rightful heirs of our inheritance, deliberately and fraudulently orchestrated succession proceedings behind our backs, ensuring that neither my consent nor my participation was sought.g.​THAT I only came to know of this outrageous and unjust scheme upon learning that the Respondents had already begun subdividing and disposing of the estate properties, effectively seeking to permanently disinherit and disenfranchise me and other rightful beneficiaries.h.That unless this Honourable Court urgently intervenes to stop this fraudulent scheme, I stand to suffer grave and irreparable loss, as the estate properties are being illegally alienated and dissipated to third parties in a manner that is not only unjust but also blatantly unlawful.i.That this Summons is one of extreme urgency, as it seeks to correct a grave miscarriage of justice before the fraudulent Administrators succeed in completely disinheriting the rightful heirs and rendering my claim futile.j.That it is in the interest of justice, equity, and fairness that this Honourable Court nullifies the fraudulently obtained grant and restores the rightful beneficiaries to their lawful inheritance.k.That I swear this Affidavit in good faith and in the sincere pursuit of justice and the rightful administration of the estate of the deceased. 12.In response to the application, Margaret Jepkemboi Boit swore and filed a Replying Affidavit dated 26th March 2025 opposing the application. The 2nd Respondent relies on the contents of the said Replying Affidavit, which is set out herein:a.That I am the 2nd Administrator herein, fully conversant with the facts of this case hence legally authorized to swear this affidavit.b.That the contents of the Objector/Respondent’s summons dated 10th March, 2025 have been read out and explained to me by my counsel on record, Ms. Isiaho and having understood its import and purport, we wish to respond thereto as follows;c.That the summons is ill motivated having been brought by a complete stranger.d.​THAT being the son of one Joseph Kiplagat Chemalan as stated above, the Objector/Applicant has no nexus to the estate of the deceased herein.e.That in the foregoing circumstances, we were under no obligation, legal or otherwise to include the said Objector/Applicant as a beneficiary of our late father’s estate.f.That the orders sought by the Applicant are geared not only at derailing these proceedings but delaying their conclusion.g.That I confirm that we have since been issued with the title deed for L.R No. Kaptagat/Lotonyok (Ngelel Tarit)/59.h.That it is within my personal knowledge that our late father, the deceased herein had sold a great chunk of the aforesaid parcel of land, to third parties who are demanding issuance of title deeds for the portions purchased.i.That in the above premises, I submit that issuing the orders sought by the Objector/Applicant will result in the cancellation of the title deed already issued as stated above albeit the costs incurred in obtaining the same.j.That the best interest of justice will serve by maintaining the current status quo on both the ground and the records at the land registry and the summons for revocation fast tracked for hearing on merit.k.That contrary to the allegations made by the Applicant, my Co-Administrator and I did not mislead this Court into issuing us with the certificate of confirmation of grant as alluded or at all.l.That further to the above, it is not true that our brother one Albert Norman Kipkorir Boit was aware of our moving the Court and her indeed participated virtually prior to the congregation of the grant.m.That while I may not be a biological child to the deceased herein, I believe that I qualifies as a beneficiary under section 29 (b) having been taken in and accepted by the deceased in his lifetime as his ownn.That further to the above, the deceased herein took out my certificate of birth in his name as my biological father.o.That it is within our personal knowledge that the Objector/Applicant is not in any way related to the deceased herein as alluded or at all. Furthermore, he has not provided any documentation proof of his nexus to the deceased.p.That in the above premises, I urge this Court to dismiss the misguided summons before Court to bring closure to this matter.q.That justice, fairness, equity and balance of convenience tilts towards dismissing the summons before Court.r.That no prejudice will be suffered by the Objector who is a complete stranger to the suit.s.That ends of justice will be served by allowing this application as prayed.t.That this Honourable Court reserves the discretion to disallow this summons which discretion I hereby urge it so to exercise in the best interest of justice.u.That I am swearing this affidavit in strong opposition of the summons now before Court. 13.In response to the application is the Replying affidavit of Raymond Boit who avers as follows:a.That I am the 1st Administrators herein, fully conversant with the facts of this case hence legally authorized to swear this affidavit.b.That the contents of the Objector/Respondent’s summons dated 10th March, 2025 have been read out and explained to me by my counsel on record, Ms. Isiaho and having understood its import and purport, we wish to respond thereto as follows;c.That the summons is ill motivated having been brought by a complete stranger.d.That being the son of one Joseph Kiplagat Chemalan as stated above, the Objector/Applicant has no nexus to the estate of the deceased herein.e.That in the foregoing circumstances, we were under no obligation, legal or otherwise to include the said Objector/Applicant as a beneficiary of our late father’s estate.f.That the orders sought by the Applicant are geared not only at derailing these proceedings but delaying their conclusion.g.That I confirm that we have since been issued with the title deed for L.R No. Kaptagat/Lotonyok (Ngelel Tarit)/59.h.That it is within my personal knowledge that our late father, the deceased herein had sold a great chunk of the aforesaid parcel of land, to third parties who are demanding issuance of title deeds for the portions purchased.i.That in the above premises, I submit that issuing the orders sought by the Objector/Applicant will result in the cancellation of the title deed already issued as stated above albeit the costs incurred in obtaining the same.j.That the best interest of justice will serve by maintaining the current status quo on both the ground and the records at the land registry and the summons for revocation fast tracked for hearing on merit.k.That contrary to the allegations made by the Applicant, my Co-Administrator and I did not mislead this Court into issuing us with the certificate of confirmation of grant as alluded or at all.l.That further to the above, it is not true that our brother one Albert Norman Kipkorir Boit was aware of our moving the Court and her indeed participated virtually prior to the congregation of the grant.m.That while the 2nd Administrator may not be a biological child to my late father, she qualifies as a beneficiary under section 29 (b) having been taken in and accepted by the deceased in his lifetime as his own.n.That it is within our personal knowledge that the Objector/Applicant is not in any way related to the deceased herein as alluded or at all. Furthermore, he has not provided any documentation proof of his nexus to the deceased.o.That in the above premises, I urge this Court to dismiss the misguided summons before Court to bring closure to this matter.p.That justice, fairness, equity and balance of convenience tilts towards dismissing the summons before Court.q.That no prejudice will be suffered by the Objector who is a complete stranger to the suit.r.That ends of justice will be served by allowing this application as prayed.s.That this Honourable Court reserves the discretion to disallow this summons which discretion I hereby urge it so to exercise in the best interest of justice. 14.This application falls within Section 76 of the Law of Succession Act which sets out grounds upon which the discretionary power of the Court can be exercised to revoke a grant and set aside a Certificate of confirmation of Grant to the intestate estate of the deceased, if it was obtained fraudulently, or contains substantive defects or it has non-disclosure of material facts or the Administrators has or have failed to manage the estate diligently. In brief, the following cases demonstrate the grounds upon which Section 76 can be invoked to nullify the grant of representation or the one which has been confirmed to transmit the shares to the beneficiaries: In re Estate of the Late Chemase Ego (Deceased) [2025] KEHC 527: The High Court revoked a grant and its confirmed certificate after determining that the petitioner deliberately concealed vital facts and liabilities from the Court, rendering the initial proceedings defective in substance. In re Estate of Samwel Muiruri Nganga (Deceased) [2025] KEHC 179: The Court explored the scope of Section 76, noting that confirmed grants can be annulled if it is proven that the initial process intentionally excluded legitimate beneficiaries. In re Estate of Kiplangat Temorigi (Deceased) [2025] KEHC 5623: The High Court annulled a grant on its own motion under Section 76 after the administrator failed to diligently administer the estate or apply for confirmation of grant within the statutory one-year timeframe without reasonable cause. Kuria v Irungu (Succession Appeal E028 of 2022) [2025] KEHC 3340: The High Court canceled a Certificate of Confirmation of Grant after determining there were competing, unresolved claims concerning the lawful marital status of rival dependents, making the initial grant defective 15.In simple terms, a grant of representation (a “Grant”) can be defined as authority given to a person by the Court to act in respect of a deceased’s person’s estate. Once a Grant is issued and confirmed, the personal representative has the legal authority to distribute the estate to the beneficiaries. It is worth noting however, that the issuance of a Grant is not necessarily final; the Grant can in fact can be revoked or annulled by the Courts where there are sufficient grounds to do so. Accordingly, Section 76 of the Law of Succession Act (Cap. 160, Laws of Kenya) (the “LSA”) provides the grounds under which a Grant can be revoked or annulled. 16.In so far as the principles on proceedings to obtained the grant being defective in substance. The Court in re estate of Nazir Khan Mohamed (Deceased) eKLR, made the following observations:A petition for Grant of probate was filed by executrix named in the Will. An Objection and an Answer and Cross Application were subsequently filed by an objector; however, the Grant was issued to the executrix without the hearing and determination of the objection. The objector therefore applied for revocation of Grant as it was issued irregularly before hearing and determination of the objection. The Court found that at the time the Grant was issued, the Objection and an Answer and Cross-Application filed by the objector were not in the Court file. The stamps on the documents however indicated that the Court received these documents before issuing the Grant. As such, the Court was under an obligation to determine the dispute before issuing the Grant. The Court was satisfied that the proceedings to obtain the Grant were defective in substances and revoked the Grant. 17.The Courts have also spoken what it takes to revoke a grant which was obtained fraudulently by making a false statement or by the concealment from the Court of something material to the case. The guiding principles are to be found in the case of re estate of the late Epharus Nyambura Nduati (Deceased) eKLR, the applicant (the “Purchaser”) made an application to revoke the Grant for reasons that the Administrators obtained a confirmed Grant by way of concealment of material facts that he was entitled to two (2) acres of land (the “Property”), having bought the same from the deceased, therefore, the proceedings were defective in substance. The Purchaser purchased the Property from the Deceased vide agreements dated 6/9/94, 28/6/94 and 24/2/95. The Deceased died before transferring the Property to the applicant but the applicant took possession of the Property immediately after the purchase. The applicant’s name was accordingly included in the Summons for Confirmation of Grant as a beneficiary of the Property. The Purchaser later found out that the administrator had filed a further affidavit to remove the applicants name due to differences allegedly arising between the parties relating to subdivision of the Property before confirmation of grant. The administrator claimed that the applicant consequently sought a refund of the purchase price paid, causing the administrator proceeded to sell the Property to a third party before the Grant was confirmed to enable him to refund the Purchaser. The Purchaser however submitted that he could only have denounced his entitlement by signing a consent to the proposed mode of distribution removing his name and he should have appeared before Court to confirm his consent to his entitlement being distributed to another person. The Court found that the administrator had colluded with the third party to disinherit the Purchaser as there was no evidence that the Purchaser denounced his interest in the Property or asked to be refunded or was even refunded. As such, the manner in which the confirmation of Grant was undertaken was improper. The Court however focused on the fact that the Administrators had knowledge of the fact that the Purchaser had purchased the Property from the deceased and still proceeded with the sale to the third party before the Grant was confirmed, contrary to s. 82 of the LSA. It therefore revoked the Grantland subsequent confirmation as it was obtained fraudulently by making false statements or by concealment from Court of the sale of the Property and cancelled the title of the Property in the name of the third party. 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 18.This revocation of grant according to the Objector one Albert Lagat is that the confirmation proceedings on 7th February 2025 were taken out by the Petitioners but they concealed material evidence on the provision of Section 29 of the Act with regard to the legitimate beneficiaries rendering the final certificate of confirmation of grant fatally defective. The applicant went further to state in his affidavit that the 2nd Respondent/Petitioner is not the legitimate beneficiary within the meaning of the Law of Succession Act hence has no rightful claim to any portion to the deceased’s estate. The law is very clear that who alleges existence or non-existence of a fact must prove that those facts exist as provided for under Sections 107, 108, 109, 112 of the Evidence Act. 19.This initial burden of proof always rests on the person who asserts the claim, unlike criminal cases is not necessary to prove facts beyond reasonable doubt but I also hold the view that legitimacy which flows from consanguinity and affinity bloodline heritage is never proven on a balance of probabilities. One is either a biological child of a specific parent or not. Therefore, in the case of this nature a fact is considered proved if the Court believes in existence or its inexistence is so proven that a prudent person would act upon it. The Court is therefore called upon to weigh conflicting probabilities to determine which version is more likely to be true. 20.The Applicant’s allegations remain perplexing given the Petitioners’ typology which is supported by documentary evidence authenticating the legitimacy of the 2nd Petitioner one Margaret Jepkemboi Boit. The first piece of evidence to controvert the testimony of the objector/applicant, is in the eulogy of the deceased which inter alia spoke of his early life, education and career, Christin life, community responsibility and finally his health. According to the eulogy, the late got married on the year 1971 and were blessed with children namely Raymond, Albert (USA) and Maggy and also he leaves behind three grandchildren. Similarly, during the petition for the making of grant of representation the petitioners Raymond and Margaret Boit filed Form P&A 38 and which was a consent signed by the following beneficiaries in support of the making of the grant of administration namely; Rose Irene Boit, Raymond Boit, Albert Norman Kipkorir Boit and Margaret Boit. The Chief’s letter has not been established to be a forgery given that it is one of the key instruments provided for under the Law of Succession Act and is mandatory for any petitioner who is desirous of petitioning for the making of grant of representation to administer the intestate estate of the deceased. The Kenya gazette dated 29th August 2024 entered in its official inventory on Cause No. E072 of 2024 as follows:By (1) Raymond Boit and 2 Margaret Jepkemboi Boit both of P.O Box 683 Eldoret in Kenya, the deceased’s son and daughter respectively, for a grant of letters of administration intestate to the estate of David Kimutai Boit, who died at Kaptebee sub location on 12th July 2023.R.N OnkobaDeputy Registrar 21.These are all pieces of material evidence which controverts and credibly so the position taken by the objector who has made attempts to discredit the legitimacy of the family tree of the deceased in so far as Margaret Jepkemboi Boit is concerned. This estate in the distribution matrix has been shared equally amongst the beneficiaries and heirs to the estate of the deceased in consonance with Section 38 of the Law of Succession Act. What carries the day in any litigation is the nature and character of evidence adduced by the claimant, plaintiff, petitioner or objector to discharge the burden of proof with regard to the existence or non-existence of facts in issue. 22.In the instant case it is about answering the question as to whether Margaret Jepkemboi is a stranger to the lineage of the deceased as provided for in Section 29(a) of the Law of Succession Act. In my considered view that question has been answered in the affirmative by the petitioners in broad daylight as to why Margaret Jepkemboi is a legitimate heir to the estate of the deceased. The allegations in the affidavit by the objector remains to be allegation which do not meet the threshold on the standard and burden of proof as outlined in our legal system. 23.The Learned Author Sir Alfred Wills in his Admirable Book Wills Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: a. the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum, b. the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability, c. in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits, d. in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, Similarly, in Hanumant Govind Nargundkar and Anr. v. State of' Madhya Pradesh, AIR (1952) SC 343, it was observed that:“It is well to remember that in cases where the evidence is of a circumstantial nature. the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 24.Every case properly presented before a Court of law is a combination of various facts and parties to the claim or dispute have to establish facts which goes in her/his favor or against his/her opponent. These facts are usually divided into two categories, the affirmative and the negative dichotomy of the case. There is also in law what is referred as the doctrine presumptions meaning is an inference of fact drawn from other known or proved facts. It is a rule which treats an unknown fact as proved on proof or admission of certain other facts. It means a rule of law that Courts shall draw a particular inference from a particular fact or from a particular evidence, unless and until the truth of such inference is disproved. Presumptions help in determining the probative force of evidence by bringing the estimation of probative force under some inflexible rules excluding judicial discretion. 25.The question of presumption has to be kept distinct from the question of proof. For the purpose of raising the presumption what one has to see is the state of affairs prevailing on the date on which the presumption is sought to be invoked. On the other hand, in order to prove a certain legal relationship between the parties, the Court is not only concerned with the state of affairs prevailing at the time when the question arose, but also with the state of affairs prevailing when the alleged legal relationship is said to have arisen. (see the provision of Section 112, 114, 118 & 119 of the Evidence Act, R vs Abdi Ibrahim Owl [2013] eKLR, Mary Nyambura Kangara v Paul Ogari Mayaka Petition 9 of 2021, Kanji & Kanji vs R and JKG v MGM [2024] eKLR) 26.As can be seen above, the doctrine of presumption in law is a legal rule that requires a Court to assume a particular fact is true based on the existence of other existence facts even without direct evidence. The objector in these proceedings is asking the Court to look beyond the documentary evidence which has been adduced by the petitioners to deconstruct his hypothesis with regard to the paternity of one Margaret Jepkemboi as an heir/beneficiary to the estate of the deceased. In my considered view there has been no evidence provided on non-disclosure of material facts by the petitioners or evidence of misrepresentation of facts or that the making of the grant of representation which was later confirmed fell short of the law which necessitates this Court to invoke the provision of Section 76 of the Act to have the same revoked or annulled. 27.That evidence adduced by the objector apart from pinpointing that Margaret Jepkemboi is a stranger to the intestate proceedings, nothing credible or concrete was produced before this Court at the various levels of this litigation to discharge the standard and burden of proof to justify the context and the design of Section 76 of the Act of the laws of Kenya on succession matters. For example, Dworkin law itself as an interpretive process. Thus: Legal practice is an exercise in interpretation not just when lawyers interpret documents or statutes but also generally. Propositions of law are not simply descriptive of legal history, in a straightforward way, nor are they simply evaluative in some way divorced from legal history. They are interpretive of legal history, which combines elements of both description and evaluation, but is different from both. See R. Dworkin, Law as Interpretation,” 60 Tex. L. Rev. 529 (1982) 28.The answer to these questions raised by the objector are important. First, the line between interpretive and non-interpretive as to the elements who qualifies to be a legitimate child of the deceased is not blurred and it is dependent on the given provision of the statute and norms of constitutional imperatives under Art 27 (1-4) of the Constitution. The text of the Law of Succession Act is not just words but also spaces, often gaps arranged in telling ways not simply ambiguities around the edges spaces which it may truly be said, structures fill and whose patterns structure defines. 29.The view I have taken on this matter is that the evidence by the objector in the world of sense is wrong and his decision to deny that Margaret Jepkemboi is not a beneficiary to the estate, is evidence which does not operate within the limits of the language prescribed in Section 29 of the Law of Succession Act. 30.For those reasons on the end of the spectrum and the evidence so far tendered by the objector without any use of judicial discretion this dispute has a single unique legal outcome for a declaration to be made for the objection proceedings being pursued before this Court by the objector lack legal basis and the same is struck out for want of merit with costs to the 2nd Petitioner/Administrator. 31.Finally, before Court is Chamber Summons dated 5th May 2025, expressed to be brought under Section 3(2) of the Law of Succession Act, Cap 160, Section 48 of the Evidence Act Cap 80, and all other enabling provisions of the Law seeking the following orders:a.Spent.b.That this Honourable Court be pleased to order that the Applicant, Albert Kipchirchir Lagat, and the 1st Respondent, Raymond Boit, do present themselves for a Deoxyribonucleic Acid Test (DNA) test at a government-certified facility (e.g., Government Chemist) to determine whether they share a common biological father, the late David Kimutai Boit.c.That the Honourable Court do direct that the costs of the DNA test be borne equally by the Applicant and the 1st Respondent or as the Court may otherwise direct.d.That this Honourable Court be pleased to make such further or other orders as it may deem fit in the circumstances of this case. 32.The application is supported by the grounds set out herein and the annexed Affidavit of Albert Kipchirchir who deponed as follows:a.The Applicant is a biological child of the deceased, David Kimutai Boit, and has instituted proceedings for the revocation of grant issued to the Respondents on the grounds of fraudulent misrepresentation and exclusion.a.The 1st Respondent has disputed the Applicant’s relationship with the deceased, thus casting doubt on the Applicant’s legal standing as a beneficiary to the estate.b.A conclusive determination of the Applicant’s biological relationship to the deceased is critical for a fair and just resolution of the succession cause and for safeguarding the integrity of the estate distribution process.c.That ordering the parties to undergo a DNA test would serve the interests of justice, prevent further protracted litigation, and ensure that rightful heirs are neither denied nor deprived of their lawful inheritance.d.That the application is made in utmost good faith and in the interest of justice.e.In the premises, it is only fair and in the interest of justice that the Application herein be heard urgently and orders issued as prayed. 33.The application is supported by the grounds set out herein and the annexed Affidavit of Albert Kipchirchir Lagat who deponed as follows:a.That I am the Applicant herein, hence competent and duly authorized to swear this affidavit.b.That the deceased herein, David Kimutai Boit, is my biological father, having had a relationship with my late mother [insert name if known], which resulted in my birth.c.That I have brought an application for revocation of the grant of letters of administration issued to the Respondents herein on the grounds that I was wrongfully and fraudulently excluded from the list of beneficiaries to the estate.d.That the 1st Respondent, Raymond Boit, has contested my relationship to the deceased, and has maintained that I am not a son of the deceased and therefore not entitled to any share of the estate.e.That in light of the said dispute and in the interest of justice, I seek orders of this Honourable Court directing both myself and the 1st Respondent to submit to a DNA test to confirm whether we share a common biological father—the deceased.f.That I am willing and ready to submit myself for the DNA test at a government-approved laboratory or at any other facility that this Honourable Court may direct.g.That I believe that a DNA test is the most objective and conclusive way to resolve the question of paternity, which lies at the heart of the succession dispute.h.That unless the orders sought are granted, I stand to suffer grave injustice through continued exclusion from the estate of my late father. 34.The application is supported by the grounds set out herein and the annexed Affidavit of Richard Kipkosgei Boit who avers as follows:a.That I am the last born sibling to the deceased David Kimutai Boit, who is the subject of these succession proceedings.b.That the applicant herein, Albert Kipchirchir Lagat is well known to me as my nephew, having been introduced to me by my brother a few years before he died.c.That the deceased and his son came to our ancestral home in Lelboinet severally, and there has never been any doubt about the paternity of the applicant and the deceased Mr. Boit.d.That when it was discovered that succession proceedings had been undertaken, I was surprised to find that the applicant had not been involved or any provision made for, yet the Administrators are aware that the applicant is the biological son to the deceased.e.That I am also aware that there was a property known as Kaptagat/Lotonyok (Ng'elel Tarit) 59 which the deceased had indicated was to be given to the Applicant, but I cannot confirm if there was any written will to that effect.f.That I am also willing to conduct a DNA test to confirm the paternity/degree of consanguinity between my deceased brother and the applicant.g.That I make this affidavit in support of the application to revoke grant to pave way for provisions for the applicant as a rightful heir under the Law of Succession Act.h.That the entire process was a conspiracy to defraud the rightful heirs of their lawful inheritance, carried out through deception and deceit, with the intent to illegally appropriate the estate for their own selfish benefit.i.That is all I wish to state for now, and I am willing to provide any clarification during the hearing.j.That I swear this Affidavit in good faith and in the sincere pursuit of justice and the rightful administration of the estate of the deceased. 35.The application is supported by the grounds set out herein and the annexed Affidavit of Sarah Jeruiyot Christopher who avers as follows:a.That I am the 5th borne sibling to the deceased David Kimutai Boit, who is the subject of these succession proceedings.b.That the applicant herein, Albert Kipchirchir Lagat is well known to me as my nephew, having been introduced to me by my brother a few years before he died.c.That sometimes around the year 2018, I had accompanied the deceased to Chepkoilel where we had gone to look for one of our relatives who had been lost for some time.d.That on that particular day, we were only the two of us with my deceased brother in my car. I was the one driving.e.That while we speaking on various matters, he confided in me that he has a son. I asked him where he is, but he informed me that he would introduce him to the family in due course.f.That upon probing further, he informed me that his wish was that he wanted this son to stay and live at a place known as Ngelel Tarit in Ainabkoi.g.That I later met the applicant in the year 2023 after the deceased had died.h.That various family meetings have been held, and we have welcomed the applicant with open arms to the family.i.That it is my wish that the applicant be included in the estate as the son to my deceased brother.j.That is all I wish to state for now, and I am willing to provide any clarification during the hearing.k.That I swear this Affidavit in good faith and in the sincere pursuit of justice and the rightful administration of the estate of the deceased. 36.The application is supported by the grounds set out herein and the annexed Affidavit of Josephine Jepkorir Boss who avers as follows:a.That I am the 2nd borne sibling to the deceased David Kimutai Boit, who is the subject of these succession proceedings.b.That the applicant herein, Albert Kipchirchir Lagat is well known to me as my nephew, having been introduced to me by my brother a few years before he died.c.That since 2015, my brother kept telling me about his son who he was yet to introduce to the family. He informed me that his name was Kipchirchir. He informed me that he wanted him to finish school so that he would come home officially.d.That he also informed me that his wish was that he wanted this son to stay and live at a place known as Ngelel Tarit in Ainabkoi.e.That we met with the applicant on the day of the funeral of the deceased, although we had established contact way before.f.That various family meetings have been held, and we have welcomed the applicant with open arms to the family.g.That it is my wish that the applicant be included in the estate as the son to my deceased brother.h.That is all I wish to state for now, and I am willing to provide any clarification during the hearing.i.That I swear this Affidavit in good faith and in the sincere pursuit of justice and the rightful administration of the estate of the deceased. 37.The application is supported by the grounds set out herein and the annexed Affidavit of Sally Sing’oeI who avers as follows:a.That I make this affidavit by the help of my lawyer since I do not properly understand English.b.That I am not family to the deceased, but I was the helper to the deceased for over 15 years in Turbo.c.That the deceased was long divorced and did not stay with a wife.d.That since he was elderly, I was assigned by the family to help him in house chores which included cooking, cleaning and generally maintaining the welfare of the home.e.That I stayed with the deceased approximately between 1999 – 2014, helping him with household chores, since he did not have a wife at the time. Around the year 2014, the 1st respondent, Raymond Boit, came back from South Africa. He was a bot quarrelsome and I did not stay there for so long. I then decided to move to Kuinet in Uasin Gishu where I continue to live.f.That Albert’s mother was a next door neighbor, and we shared the same fence. I am aware that the applicant was conceived by a relationship between the deceased and the applicant’s mother, Selly Jerotich.g.That the applicant used to visit his father very frequently, and would get a lot of financial support from his late father.h.That we met with the applicant on the day of the funeral of the deceased, although we had established contact way before.i.That various family meetings have been held, and we have welcomed the applicant with open arms to the family.j.That it is my wish that the applicant be included in the estate as the son to my deceased brother.k.That is all I wish to state for now, and I am willing to provide any clarification during the hearing.l.That I swear this Affidavit in good faith and in the sincere pursuit of justice and the rightful administration of the estate of the deceased. 38.The application is supported by the grounds set out herein and the annexed Affidavit of Selly Jerotich who avers as follows:a.That I am the mother and guardian of Albert Kipchirchir Lagat, the applicant herein.b.That the deceased before his demise was my neighbor in Turbo, our homesteads being separated by a fence.c.That we had a brief relationship with the deceased which begun in the year 1992, and shortly thereafter I conceived and gave birth to the applicant as a result. The applicant was born on 6th January, 1995.d.That all along, my son used to visit his father and they enjoyed a father and son relationship. Whenever he needed school fees or any other basic needs, the deceased would provide for him.e.That when the applicant was ready to join high school, it is the deceased who in fact was busy looking for a school, and finally settled on Paul Boit High School, which our son attended.f.That there is no doubt in my mind that the applicant is a son and a rightful heir to the deceased under the laws of Succession.g.That in addition to that, the deceased had pointed out the land where he wished the applicant to stay, being Ngelel Tarit farm in Ainabkoi constituency.h.That is all I wish to state for now, and I am willing to provide any clarification during the hearing. 39.This Court has been asked to exhume the body of the deceased for the DNA samples to be extracted to establish paternity of the 2nd petitioner Margaret Jepkemboi. Exhumation in the forensic pathology is the act of lawful bringing out a buried dead human body for medical legal purposes. There are important steps in exhumation of the deceased interred body which include history of the event, taking note of the scene of the grave, type of grave, whether the earth over the grave is fresh or old, the size of the grave, whether there was use of a casket or not, position of the body in the grave and the condition of the body at the time of an order of exhumation is being applied for by an applicant/objector in succession matters. 40.The issue before this Court is one of paternity and is settled law that there are three ways to prove paternity from my perspective.a.Paternity by existing marriageb.Paternity by subsequent marriage to the motherc.Paternity by acknowledgement of the father 41.These guidelines were echoed in the case of Okolonwamu & Anor V. Okolonwamu & ORS (2014) LPELR-22631(CA) Pp. 43, para. C-F where the Court stated as follows:“How can paternity be proved? Paternity of a child can be determined by three major ways which are akin to the ways of proving legitimacy of a child. They are: (1) Paternity by existing Marriage: A child born during the pendency of a valid marriage between a couple is automatically presumed to be legitimate. (2) Paternity by Subsequent Marriage to the mother: This occurs when a child is born at a time when the mother was not married to the father and after whose birth the mother and father entered into a valid marriage. (3) Paternity by acknowledgement by the father accepting paternity of the child: This includes paying for the hospital bills and upkeep of the child, introducing the child to his family as his child etc.’’ 42.In the application before this Court, the objector challenges paternity of the 2nd petitioner Margaret Jepkemboi and declares her as stranger to the inheritance of the estate due to collusion by the 1st petitioner. However, the evidence adduced by the petitioner/respondents to the objection proceedings accorded the Court documentary evidence which was more credible than the objector’s evidence without any document. It is trite law that where there are conflicting pieces of evidence on a matter, the party whose evidence is supported by documentary evidence would be accorded more credibility. This is what the Supreme Court of Nigeria alluded to in the case of Idesoh & Anor V. Ordia & ORS (1997) LPELR-1421(SC) Pp. 13-14, paras. F-B where they stated as follows: "It is not enough for a party to make averments in pleadings. Averments which on the face of them appear impressive are useless if no evidence is led to prove them. Mere averment in pleadings without proof of the fact pleaded is no proof if the averment is not admitted. See Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578. Also, failure to give evidence in support of an averment means that the averment in question has been abandoned. See: Omoboriowo & Ors v. Ajasin (1984) 1SCNLR 108; (1984) 1 S.C 206 at p.202, and Balogun v. Amubikanhun (1985) 3 NWLR (Pt.11) 27 at pp. 36 & 37." 43.In an affidavit placed before this Court by the objector, he proposes of an exhumation of the body of the deceased so that DNA samples can be extracted for purposes of DNA profiling of the deceased with that of Margaret Jepkemboi the 2nd Petitioner. As I have said elsewhere in this ruling the objector did not discharge the burden of proof under Sections 107(1), 108, 109, 111, &112, 114 in so far as discrediting the legitimacy of the 2nd petitioner as being one of the direct beneficiaries to the intestate estate of the deceased as provided for under Section 29 of the Law of succession Act. He then moved the Court that a proper scientific process is needed and it must be through exhumation of the body of the deceased. If indeed there would be compelling evidence for a Court of law to order for exhumation of the body of the deceased then it must be under the doctrine of necessity and absence of any other human beings alive from that lineage or family tree of the deceased to give samples towards establishing kinship or sibling’s paternity. 44.From that perspective for an order of exhumation of deceased person’s body should be one of the last resort. This is what the Court said in re Matheson (deceased) [1958] 1All ER 202 at 204 with regard to exhumation:“As I have said, the primary function of the Court is to keep faith with the dead. When a man nears his end and contemplates Christian burial, he may reasonably hope that his remains will be undisturbed, and the Court should ensure that, if reasonably possible, this assumed wish will be respected. In all these cases, the Court must and will have regard to the supposed wishes of the deceased. I say supposed wishes, because it can rarely, if ever, happen that the circumstances giving rise to the application could have been contemplated still less, discussed, in the lifetime of the deceased.”This is the position also taken by our Courts in the case of Estate of Julius Kiragu Kiara (Deceased) [2018] eKLR, where it was held that:“My opinion is that, DNA profiling for purposes of proving parentage may be the best option. The Court retains discretion to order such profiling in a suitable case. However, from time immemorial, it is a known fact that the place of the dead is to remain in the grave undisturbed. Once the body has been interred, in my view, a Court should be slow to order disinterment of a body unless in clear and desirable circumstances.” 45.There is no dispute here that Margaret Jepkemboi does not know her parents which is a constitutional right so that if there was such a dispute from her perspective may be a necessity could have risen to ascertain her paternity through DNA testing. There is no evidence that the deceased was not married and that the alleged children just surfaced as the beneficiaries of the deceased estate during the administration proceedings. There is also no contention that the children who are indicated in the Chief’s letter were born out of wedlock to different women and they were unknown to the deceased during his lifetime. I concur with the decision from the comparative Courts in Jalia Mundawarara v Harriet Nabwire, Nansubuga Cissy v Sande Nabwana, MW v KC and Maragret Tumwine Tumushabe v Brian Asiimwe in each the Courts held that DNA testing is not to be ordered, noting that such orders are intrusive and emotionally disruptive and must only be granted where the interests of justice genuinely require scientific intervention 46.The key guiding principles in Kenya which are applied before an order of exhumation takes place include inter alia: Sanctity of the Grave: Courts generally respect the sanctity of a burial. Exhumation is viewed as an extreme measure that disrupts the resting place of the deceased and will only be ordered if it is absolutely necessary for the administration of justice. The "Justice of the Case": The applicant must provide compelling prima facie evidence that a DNA test is the only way to resolve the dispute. Mere suspicion or fishing expeditions are typically rejected. Consent and Family Disagreements: If family members dispute the paternity of a claimant to an estate, Courts weigh the psychological impact on the family and the public policy against grave desecration. Evidentiary Threshold: Under the Evidence Act, expert testimony (including DNA analysis) is critical, but the burden falls on the party requesting the exhumation to prove its necessity 47.The law in Kenya, on the exhumation of a body is also governed by the Public Health Act under Section 146 which provides that is unlawful to exhume the body or remains of a person interred in an authorized cemetery without a permit. The permit is granted only to the legal personal representative, next of kin, or their duly authorized agent by the Cabinet Secretary in charge of health. 48.This paternity issue is not actively disputed apart from the objector whose evidence the Court has discarded as not being credible to challenge that his father during his lifetime had no contact with the mother at any time when Margaret could have been conceived and ultimately the deceased to be presumed to be her biological father. In light of the foregoing it would be observed that there is an overwhelming prima facie case that Margaret Jepkemboi draws her blood line from the lineage of the deceased therefore the status and rights of a legitimate child as declared in the Constitution apply to the 2nd Petitioner without any reservations including deprivation of her inheritance rights which would be considered inconsistent with Article 27(4) of the Constitution. 49.It goes without saying that a compelling case has not been made out for the exhumation of the deceased’s body by the objector for purposes of DNA sample extraction to carry out paternity test to prove the birth of the 2nd petitioner during the lifetime of the deceased. The application for the exhumation of the deceased is therefore lost and is dismissed for want of merit with costs to be shared equally among the family members to this dispute. 50.In the end the following declaration shall abide:a.That a declaration be and is hereby made that the prayer for exhumation of the body of the deceased for purposes of DNA test as against the 2nd Petitioner fails the threshold and legal requirement and therefore it is dismissed for want of meritb.That a declaration be and is hereby made that pursuant to Section 29 of the Law of succession Act the 2nd petitioner is the legitimate heir to the intestate estate of the deceased to rightfully be part of the children of the deceased to inherit the residual estate survived of the deceased.c.That a declaration be and is hereby made on rectification of the certificate of confirmation of grant which had already been issued by this Court in an earlier ruling and therefore it remains moot and the orders of the Court abide an amended grant dated 15th November 2024. Orders accordingly. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 14TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE