https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11301

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAHURURU** **SUCCESSION APPEAL NO. E008 OF 2024** **IN THE MATTER OF FRANCIS MUKUNDI GITONGA (DECEASED)** **CHARLES GITONGA MURIUKI…………………………..APPELLANT** **-VERSUS-** **NAOMI WAIRIMU NJARAMBA…………………………RESPONDENT** **JUDGMENT** 1. **Charles Gitonga Muriuki**, the Appellant, petitioned the court for grant of Letters of Administration Intestate for the Estate of Francis Mukundi Gitonga (Deceased) in his capacity as his father. At the time of his demise he had no liabilities but there was an asset, Ndunduri Lanet Bock 19/71 (WANGUHU). And on 2nd November, 2020, Letters of Administration Intestate were granted to the Appellant. 2. Through summons for revocation of grant dated 2nd November, 2020, Naomi Wairimu Njaramba, the Respondent, sought revocation of the Letters of Administration Intestate issued to the Appellant for being fraudulent, null and void. So that she could be issued with the same in place of the Appellant as she was married to the deceased with whom they had one child. 3. The Appellant filed a replying affidavit where he deposed that the Respondent was not married to the deceased and they did not have a child. That the Respondent was the one charged with the deceased’s murder. 4. The court considered rival arguments and revoked the grant then directed that the same be taken out depending on the outcome of the judgment in ***Kiambu High Court Criminal No. 29 of 2018 Republic v Naomi Wairimu Njaramba***. 5. Aggrieved, the Appellant preferred the instant appeal on the following grounds; 6. ***That the trial Magistrate erred in law and fact in revoking the grant of Letters of Administration dated 2nd November, 2020, and issued to the Appellant herein considering the fact that he was the rightful administrator in the circumstances pursuant to Section 66(b) of the Law of Succession Act.*** 7. ***That the learned trial Magistrate erred in law and in fact in finding that there was the concealment of material facts by the Appellant when obtaining the grant.*** 8. ***That the learned Magistrate erred in law and in fact in finding that the Respondent herein had capacity to apply for grant contrary to Section 96 of the Law of Succession Act considering that she was facing deceased’s murder charges before the High Court in Kiambu in Criminal Case No. 29 of 2018, Republic v Naomi Wairimu Njramba.*** 9. ***That the learned Magistrate erred in law and in fact in finding that the respondent was married to the deceased under Kikuyu Customary Law yet the essentials of the said marriage were not proved.*** 10. ***That the learned trial Magistrate erred in law and in fact in finding that the child named after the Appellant is the child of the deceased considering the fact that the Respondent had not proved that the deceased was either involved in the process of registration of the birth and that the deceased were married at the time of registration of the said minor.*** 11. The appeal was canvassed through written submissions that I have duly considered alongside authorities cited. 12. This being a first appellate court on the question of its duty, guidance is sought from the case of ***Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR*** where the court stated thus; ***“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that: -*** ***“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence”*** 1. The foundational argument by the Appellant is that the trial court misapplied the law by revoking the grant issued to the Appellant. This was as a result of reaching a finding that the Respondent was married to the deceased and were blessed with a child hence the Appellant concealed that particular material fact from the court. 2. The alleged marriage was questioned by the Appellant who further urged that the Respondent had been charged with the offence of murdering the deceased which obligated the court to stay the proceedings until that particular fact was determined. 3. **Section 76 of the Law of Succession Act** provides thus; ***A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or 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-*** ***(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or*** ***(ii)to proceed diligently with the administration of the estate; or*** ***(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or*** ***(e)that the grant has become useless and inoperative through subsequent circumstances.*** 1. That provision of law grants the court the power to act either on its own motion or following an application by a party. In the instant case, an application was made by a party. The basis of the application is the question of concealment of material facts from the court which is one of the grounds for revoking a grant. 2. The deceased herein died intestate and Letters of Administration Intestate were petitioned by the Appellant in his capacity as a father. He indicated his only asset as a parcel of land Ndunduri Lanet Block 19/71 (WANGUHU) valued at Kshs.1,000,000/- and he was the only person who survived the deceased. 3. The argument put forth by the Respondent was that the Respondent was not entitled to the estate of the deceased as she was the right person to be issued with the Letters of Administration in her capacity as his wife. This brought in the question whether indeed she was the wife of the deceased and if the minor was his son. 4. An argument that an individual is legally married to another would suggest that they have a marriage certificate. **Section 59 of the Marriage Act** provides thus; ***Evidence of marriage*** ***(1)A marriage may be proven in Kenya by—*** ***(a)a certificate of marriage issued under this Act or any other written law;*** ***(b)a certified copy of a certificate of marriage issued under this Act or any other written law;*** ***(c)an entry in a register of marriages maintained under this Act or any other written law;*** ***(d)a certified copy of an entry in a register of marriages maintained under this Act or any other written law; or*** ***(e)an entry in a register of marriages maintained by the proper authority of the Khoja Shia, Ith’nasheri, Shia imam, Ismaili or Bohra communities, or a certified copy of such an entry.*** ***(2)Despite subsection (1), a marriage may be proven in Kenya if it was celebrated in a public place of worship but its registration was not required, by an entry in any register maintained at that public place of worship or a certified copy of such an entry.*** 1. This was not the case herein. The Respondent stated that they married under the Kikuyu Customary Law. **Section 43 of the Marriage Act** provides thus; ***(1)A marriage under this Part shall be celebrated in accordance with the customs of the communities of one or both of the parties to the intended marriage.*** ***(2)Where the payment of dowry is required to prove a marriage under customary law, the payment of a token amount of dowry shall be sufficient to prove a customary marriage.*** 1. The Respondent stated that some dowry was paid to her parents by the deceased’s friends. Ordinarily, dowry would be paid by elders and a father-in-law as correctly argued by the Appellant. Therefore, it was not clear if there was actual celebration of a marriage pursuant to the Kikuyu Customary Law, hence the question whether there was a relationship that could be presumed to be a marriage because to inherit the Respondent was obligated to prove existence of spousal rights. In the case of ***Njoki v Mutheru & 3 Others (Civil Appeal 71 of 1984) [1985] KECA 32(KLR)*** ***Nyarangi JA*** stated that; ***“…..before a presumption of marriage can arise, a party needs to establish long cohabitation and acts showing general repute. If the woman bears a child or better still children, so that the man could not be heard to say that he is not the father of the children, that would be a factor very much in favour of presumption of marriage.”*** 1. The Respondent argues that she produced in evidence a birth certificate for the child, Chief’s letter from Githiga Kiambu confirming that she was the widow of the deceased, a copy of eulogy, a police statement dated 7th June, 2018 recorded by the Appellant recognizing the Respondent as the wife of the deceased and a bundle of photographic evidence showing family interactions between the deceased, the Appellant and the deceased’s family. 2. In as much as the court does acknowledge the fact that eulogy and photographic evidence is not conclusive evidence of marriage as it is circumstantial; evidence was adduced of a statement by the Appellant to the police following the deceased’s demise. It states thus; ***“My late son was the 7th born in a family of eleven children. He got married to Naomi Wairimu Njaramba in the year 2011 when my son was staying in Nakuru. My son used to make animal fees and supply them to different farmers in Nakuru upto Eldoret. They stayed together there for some time. I can remember when they were staying together in Nakuru they used to have quarrels. I can remember I have sent my wife there several times to go and settle their disputes. Their business in Nakuru started doing bad because people could take debts and not pay and that is the time his wife suggested to him if they could relocate to Limuru where there are many farmers. My son told me when they already relocated to Limuru and he told me they were doing well.”*** 1. The Appellant acknowledged the Respondent as the wife of the deceased. She was also confirmed as a wife by the area Chief. The Respondent and deceased got married in 2011 according to the Appellant or 2010 per the eulogy and the child D.G. was born in 2014 during existence of the marriage. The birth certificate bears the name of the deceased as the father. 2. Evidence on record does not challenge the authenticity of the birth certificate. In ***Re-Estate of Francis Maina Kabiru (Deceased) (Succession Cause 2484 of 2007) [2023] KEHC 21800 (KLR)*** a decision that is persuasive, the court stated that; ***“…an entry in the Register of Births and Deaths and subsequent issuance of a birth certificate is the best evidence as to the parentage of a child. I am obligated to accept this as factual unless the authenticity of the entry is sufficiently challenged. In the instant case, the Respondent did not raise any credible challenge to the authenticity of the birth certificate.*** ***The facts in this case are distinguishable from those in Wilfred Koinange Gathiomi vs Joyce Wambui Mutura & Anor where the parties did not have a birth certificate and for that reason the Court directed that scientific evidence would be the best way to determine paternity.”*** 1. In any case, the minor was born during the existence of the relationship recognized by the Appellant, hence the deceased cannot automatically be presumed not to have been the father. In the result, by repute the Respondent was the deceased’s wife. 2. It is further argued that the Respondent had no capacity to apply for the grant. **Section 96 of the Law of Succession Act** provides thus; ***(1)Notwithstanding any other provision of this Act, a person who, while sane, murders another person shall not be entitled directly or indirectly to any share in the estate of the murdered person, and the persons beneficially entitled to shares in the estate of the murdered person shall be ascertained as though the murderer had died immediately before the murdered person.*** ***(2)For the purpose of this section the conviction of a person in criminal proceedings of the crime of murder shall be sufficient evidence of the fact that the person so convicted committed the murder.*** 1. The Respondent herein was charged in court for murder of the deceased. Until conclusion of the case, the presumption of innocence is applicable. However, it would be imprudent to have an un-convicted suspect as an administrator of an estate of the deceased. No doubt the court has discretion to appoint an administrator but settling for such a person would call for caution. 2. The gravamen is that the Appellant concealed material facts from the court. In ***re Estate of Kithumbu Nyaga Elijah (Deceased) [2019] eKLR*** the court delivered itself thus; ***“In any judicial proceeding, parties must make full disclosures to the court of all material facts to the case including succession cases. This general rule of law emphasizes utmost good faith (uberrimae fidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law.”*** 1. It is apparent that the Appellant obtained the grant of letters of administration intestate having hidden the fact of the deceased having been married and there having been a child hence existence of a continuing trust. The non-disclosure misinformed the court. Therefore, the trial court did not misdirect itself in reaching the decision to revoke the grant. 2. In the premises, the appeal is without merit. Accordingly, it is dismissed with costs to the Respondent. 3. It is so ordered. **Dated, signed and delivered virtually this 23rd day of July, 2026.** **……………………** **L.N. MUTENDE** **JUDGE**