https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8433

In re Estate of Odero (Deceased) (Succession Cause 16 of 2019) [2026] KEHC 8433 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEHC 8433 (KLR) Republic of Kenya In the High Court at Migori Succession Cause 16 of 2019 ACA Ong’injo, J June 11, 2026 IN THE MATTER OF THE ESTATE OF ALIASHIB WILFRED ONGADI ODERO(DECEASED) Between Beatrice Atieno Ongadi Applicant and Peter Odhiambo Ongadi Respondent and John Kennedy 1st Interested Party Cogetra Company Limited 2nd Interested Party Ruling 1.Before this Court are applications dated 17th December 2019 seeking revocation of grant and application dated 27th May 2024 coming up for ruling. The dispute is whether distribution of LR No. Kamagambo/ Kabuoro/5557 was done properly and apportioned to the house of mama Elsheba the mother of the Applicant herein and the 1st Interested Party. 2.The Applicant’s claim is that the estate of her father was purported to have been distributed vide Migori CMC Cause no. 383 of 2007 which was done without her consent and that the parcel of land in question was subdivided and part of it sold leaving her and other siblings disinherited. That when she tried to trace the succession cause the Chief Magistrate vide letter dated 18th November 2020 wrote and said they were unable to trace it. 3.The Applicant sought that the grant be revoked and the estate properly distributed. She said that the parcel that her mother was staying and which is subject of application is LR Kamagambo/ Kabuoro/5557. She said the deceased had settled all his 4 wives and children on different parcels and she had no dispute with her step mothers and her step siblings inheritance. 4.She said that her brother Peter claims to be holding the subdivisions from LR 5557 in trust but she would like to know how mama Elshebas children are to benefit from those portions. 5.In cross examination the Applicant told Mr. Oduk Advocate that she learnt about the 2nd Interested Party in 2018 when her mother told her she had been given 2 months to vacate the parcel of land upon which her matrimonial home was situate. That upon conducting search she found that the 2nd Interested Party had been registered as proprietor of the suit land No. 5959 and 5960 upon which their home was built and that is why her mother had been given an eviction notice. 6.The Applicant said that she is entitled to inherit one over ten of the land that her father left for their mother LR 5557 because they were 10 siblings. 7.The Applicant said that she was aware parcels No. 5959 and 5960 which according to her were fraudulently subdivided from LR 5557KENHA and NLC did not involve her in deliberations for compulsory acquisition of the land where her mother resided. She said she did not seek compensation from KNLC or file complaint in the Tribunal. 8.The Applicant also said that she had filed a suit in ELC No 30 of 2017 to stop her mother’s land being taken. 9.The Applicant said that they had never sat and agreed on how the estate of their father should be distributed. 10.The Respondent Peter Ongadi said he is the Administrator of the deceased estate and that the Applicant is his step sister. He said he filed Replying Affidavit sworn on 30th September 2023. He said that the deceased distributed his estate during his life time and settled his 4 wives and their children on different parcels of land. He said the objection by the Applicant does not affect the distribution he did for other houses. He confirmed that the mother to the Applicant was given parcel No. 5557 and he urged the court narrow dispute as to redistribution to LR No. 5557 11.In cross examination the Respondent said he did not know where documents for Migori CMC Cause No 383 of 2007 disappeared to. He also said that the Applicant did not sign consent to Administration of the estate as she was represented by her mother. 12.He said that John Kennedy the brother of the Applicant was able to process his titles but he did not know how many portions he got from the estate. He said that the names of strangers in the estate must have bought land from Kennedy the brother to the Applicant. 13.He admitted having signed some forms at the chief’s office for acquisition of land in question as Administrator. He said the documents he signed were about weigh bridge but he was not aware the land had been acquired by the government as he did not participate in compensation inquiries. He said he was with other members of the family when he went to sign forms in the Chief’s office and he passed the information to some members of the family. 14.He said he did not know Opundo the owner of LR 5958 15.The 1st Interested Party did not attend court to testify and his case was closed. 16.The 2nd Interested Party’s Director testified that they bought 2 parcels of land from Kennedy Ongadi No. 5959 and 5960 which were registered in his name and they paid for the parcels. She said that they were to sell the 2 portions of land to KENHA but the process was stopped when they were taken to court. She said she only dealt with the 1st Interested Party and she was not involved with any other member of his family. 17.Witness to 2nd Interested Party in cross examination by Mr. Arika said that they were sued as 5th Respondents in Migori ELC No. E030 of 2021 which was stayed pending hearing and determination of the summons for Revocation herein. 18.She said further that she was aware the land they bought came from LR 5557 but she did not engage the Administrator as Kennedy had titles. At paragraph 7 of her affidavit sworn on 13th August 2019 she acknowledged she was aware that Kennedy was sibling to the Objector herein. 19.She said that she was not aware the property they were buying was inherited until Beatrice raised the issue. She said the seller had original titles. She said she did not take part in the succession cause and the claim against her should be dismissed. 20.Upon close of the 2nd Interested Party’s evidence directions were taken for filing of submissions. 21.The Objector/Applicant’s counsel filed submissions and effected service on 28th August 2025. 22.Mr. Kisera Advocate for the Respondent sought to rely on submissions dated 30th October 2023 filed in respect to application dated 17th August 2023. 23.Mr. Oduk Advocate for the 2nd Interested Party filed lengthy 20-page submissions dated 1st September 2025. Analysis and Determination. 24.Having considered the viva voce evidence of parties herein and respective submissions the issue for determination is whether the Objector/Applicant has satisfied the court for grant of orders revoking the grant made and confirmed to the Respondent. 25.The evidence presented before this court discloses several matters that are not seriously contested. First, both the Applicant and the Respondent acknowledge that the deceased had four wives and that during his lifetime he settled each house on separate parcels of land. Secondly, there appears to be consensus that LR No. Kamagambo/Kabuoro/5557 was the parcel allocated to the house of Mama Elsheba, the mother of the Applicant and the 1st Interested Party. Thirdly, there is no dispute regarding the entitlement of the other houses, and the Applicant expressly stated that she does not challenge the distribution relating to her stepmothers and step-siblings. 26.The dispute therefore narrows itself to the administration and subsequent dealings concerning LR No. 5557. 27.The Applicant's principal complaint is that succession proceedings allegedly conducted in Migori CMC Succession Cause No. 383 of 2007 cannot be traced and that she never consented to the administration or distribution of the estate. She further contends that the parcel allocated to her mother's house was subdivided and portions thereof transferred to third parties without consultation of all beneficiaries of that house, resulting in the disinheritance of some children. 28.The Respondent admitted that he cannot explain the disappearance of the succession file and further conceded that the Applicant did not execute any consent to the petition for grant. His explanation was that the Applicant was represented by her mother. However, no documentary evidence was produced to demonstrate such representation or authority. The absence of the original succession record leaves the Court unable to verify whether all beneficiaries were disclosed, whether requisite consents were obtained, and whether confirmation of grant was undertaken in accordance with the law.1.In the case of In re Estate of Samwel Muiruri Nganga (Deceased) ([2025] eKLR), the court reaffirmed that excluding legitimate beneficiaries, making false statements, and failing to diligently proceed with estate administration are valid grounds to revoke a grant.2.Section 76 of the Law of Succession Act empowers the Court to revoke a grant where it was obtained fraudulently by making false statements or by concealment from the Court of something material to the case, or where the proceedings to obtain the grant were defective in substance. 28.The inability to trace the succession file, standing alone, would not automatically justify revocation. However, where the administrator admits that some beneficiaries did not sign consents and the Court is unable to verify compliance with the mandatory procedural requirements because the record is missing, serious doubts arise regarding the propriety of the process through which the grant was obtained and confirmed. 29.Further, the Respondent's evidence raises additional concerns. He stated that strangers appearing in the register may have purchased land from Kennedy Ongadi, a son from the house of Mama Elsheba. Yet he was unable to explain how Kennedy became registered proprietor of portions of the estate or how the interests of the other children of that house were protected. The Applicant's evidence that there had never been a family agreement on distribution remained substantially unchallenged. 30.The Court is also mindful that the Applicant discovered the transfers only when her mother faced eviction from land upon which her matrimonial home stood. Searches revealed that parcels Nos. 5959 and 5960 had been registered in the names of third parties. The evidence of the 2nd Interested Party confirms that it purchased those parcels from Kennedy Ongadi after titles had already been issued in his name. The purchaser dealt with a registered proprietor and there is no evidence that it participated in any fraud relating to the succession proceedings. 31.The position of the 2nd Interested Party therefore requires separate consideration. The evidence demonstrates that it purchased land for value from a person who held registered titles. Although the witness acknowledged knowledge that Kennedy was a sibling of the Applicant and that the land originated from LR No. 5557, there is no evidence that the purchaser participated in obtaining the grant, in the subdivision process, or in any concealment of beneficiaries. The claim against the purchaser is therefore dependent upon the validity of the succession process and the titles flowing therefrom. 32.The Court must balance two competing considerations. On one hand is the duty to protect beneficiaries who may have been excluded from inheritance. On the other hand, is the need to safeguard innocent purchasers who acquired interests long after registration had been effected. 33.In my view, the evidence presently before the Court establishes a prima facie defect in the administration of the share belonging to the house of Mama Elsheba. The Court is unable to ascertain from any existing succession record how LR No. 5557 was distributed, whether all beneficiaries were disclosed, whether consents were obtained, and how Kennedy Ongadi came to acquire titles capable of transfer to third parties. The Respondent, as administrator, bore the burden of explaining those matters but was unable to do so. 34.Accordingly, I would be inclined to find that the administration and distribution of LR No. Kamagambo/Kabuoro/5557 was not satisfactorily demonstrated to have complied with the requirements of the Law of Succession Act. The evidence points to material non-disclosure and procedural irregularities affecting the beneficiaries of Mama Elsheba's house. Those circumstances justify revocation or partial revocation of the grant under Section 76 of the Act. 35.However, given that the Applicant expressly disclaims any challenge to the distribution affecting the other three houses, and given the existence of third-party interests, this court finds that the more proportionate and appropriate remedy is to have partial revocation by reverting the titles resultant from subdivision of LR No. Kamagambo/Kabuoro/5557. Subsequently the Administrator/Respondent to ascertain afresh the beneficiaries of Mama Elsheba's house and their respective entitlements and redistribute the said parcel to enable the 1st Interested Party dispose what is rightly due to him to whosoever he wishes without disinheriting his siblings. 36.In conclusion this court finds that the challenge to the distribution of the other houses has not been established and should fail.3.There is serious doubt regarding the administration and distribution of LR No. Kamagambo/Kabuoro/55574.The missing succession record, absence of beneficiary consents, and unexplained transfers to one beneficiary justify intervention under Section 76 of the Law of Succession Act.5.A partial revocation of the grant relating to LR No. 5557 and its subdivisions is the most the most appropriate remedy. 37.Parties to bear their own costs of the application for revocation. DATED, SIGNED AND DELIVERED AT MIGORI THIS 11TH DAY OF JUNE, 2026……………………………………HON. ANNE ADWERA- ONG’INJOJUDGEIn the Presence of:Victor – Court Assistant