[2025] KEHC 9067 (KLR)

[2025] KEHC 9067 (KLR)

The court found that the Appellant established, on a balance of probabilities, that she was married to the deceased under Bukusu customary law, supported by affidavits, letters from elders, and official documents. The Respondent's evidence did not sufficiently rebut this, and the trial court's finding to the contrary was unsound. The grant issued solely to the Respondent was obtained by concealment of the Appellant's status as a widow and thus warranted revocation under Section 76 of the Law of Succession Act. The court ordered a new grant to be issued jointly to both the Appellant and Respondent, recognizing both as widows and administrators of the estate.

Citation
[2025] KEHC 9067 (KLR)
Parties
Appellant: Fanice Ayuma Away; Respondent: Cathrine Ochung'
Court
High Court
Court Station
High Court at Bungoma
Jurisdiction
Kenya
Judgment Date
26 June 2025
Case Number
Succession Cause E005 of 2023
Procedural Posture
Succession Appeal / Judgment
Outcome
Appeal allowed. Grant to Respondent revoked. New joint grant to Appellant and Respondent ordered.
Judges
MS Shariff
Legal Topics
Customary Marriage, Revocation of Grant, Dependants in Succession, Burden of Proof, Letters of Administration
Source Language
English
Family and Children Civil Procedure Customary Marriage Revocation of Grant Dependants in Succession Burden of Proof Letters of Administration

Case Brief

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Parties

Fanice Ayuma Away

Appellant

Cathrine Ochung'

Respondent

Procedural Posture

Succession Appeal / Judgment

Legal Issues

  1. 1 Whether the Appellant was a wife of the deceased under Bukusu customary law.
  2. 2 Whether the Grant of Letters of Administration issued on 10th January 2022 should be revoked due to concealment of material facts.

Ratio Decidendi

The court found that the Appellant established, on a balance of probabilities, that she was married to the deceased under Bukusu customary law, supported by affidavits, letters from elders, and official documents. The Respondent's evidence did not sufficiently rebut this, and the trial court's finding to the contrary was unsound. The grant issued solely to the Respondent was obtained by concealment of the Appellant's status as a widow and thus warranted revocation under Section 76 of the Law of Succession Act. The court ordered a new grant to be issued jointly to both the Appellant and Respondent, recognizing both as widows and administrators of the estate.

Court Disposition

Appeal allowed. Grant to Respondent revoked. New joint grant to Appellant and Respondent ordered.

Orders

  • The Grant issued to Cathrine Ochung in Bungoma Chief Magistrate’s Court Succession Cause No. E249 of 2021 on 10th January 2022 is revoked.
  • A Grant is issued in respect of this estate to Fanice Ayuma Away and Cathrine Ochung'.