[2023] KEHC 25440 (KLR)

In re Estate of Naran Lakhman Ravji (Deceased) (Succession Cause E20 of 2020) [2023] KEHC 25440 (KLR) (20 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25440 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause E20 of 2020

RN Nyakundi, J

November 20, 2023

Between

Mayunben Lakhman Naran

1st Petitioner

Manilal Ravji Naran

2nd Petitioner

and

Muthoni Ngaruiya

1st Objector

Yasmin Shamira Lakhman

2nd Objector

Ruling

1. What is pending before this court is the Summons for revocation of grant dated 15th November 2022 seeking an order that the grant of letters of administration issued to Mayuriben Lakhman Naran and Maninlal Ravji Naran on 26th May 2021 be revoked on the grounds that the Petitioners were granted letters of administration of the estate gave false information, the misleading information being that they left out the Applicants and another daughter namely Harshita Lakhman from the list of beneficiaries in the petitioner. Further, that despite the anomaly pointed out above, the court issued Grant of Letters of administration intestate to the petitioners.

2. Additionally, the applicants based the application on the grounds that the petitioners have not involved them and one more dependant in the process of application of grant yet they are surviving dependants. Further, that the petitioners left out the deceased’s motor vehicle and shares in the list of properties being;i.Lexus station wagon Reg No. KCS 407 Nii.Toyota station wagon Reg No. KCS 357 H andiii.Toyota station wagon Reg No. KCS 356 Hiv.Shares in Rift Haulier Cargo Transporters

3. Further, that the Petitioners concealed material facts in respect of the deceased heirs and property hence they cannot purport to considered to administer the estate of the deceased fairly.

Hearing of the objection 4. Each of the parties produced witnesses in support of their cases. The witnesses relied on their witness statements in giving evidence.

5. The objector testified that she is the 2nd widow of the deceased having been married to him under Kikuyu Customary Law. In 2003, together with the deceased, they started a business of a mobile phone shop and she used to travel to Dubai for the same. There was also a motor vehicle spare parts shop and they would equip it with parts. She stated that there was construction of a hostel in a plot known as EATEC. That she was involved in the running of the business with the deceased.

6. It was her testimony that she later came to learn that the deceased was married to the 1st petitioner and they were blessed with three issues. Further, that the petitioners did not obtain consent for filing the petition for grant of letters of administration of the estate from her and other beneficiaries. It was her evidence that the petitioners left out the deceased’s personal vehicles being;i.Lexus Station Wagon Reg No. KCS 407Nii.Toyota Station Wagon Reg No. KCS 357Hiii.Toyota Station Wagon Reg No. KCS 356H

7. Further, to the above, that the deceased had other properties in joint names with the 2nd petitioner since they had a joint business known as Rift Haulier Cargo Transporters of which the deceased was the largest shareholder. She testified that the petitioners took out the grant by leaving out the others being; Harshita Lakhman

Yasmin Shamira Lakhman

The 1st objector

8. She testified that the assets of the deceased should be shared equally among the dependants. Further, that there were other properties in the joint names of the deceased and the 2nd petitioner since they had a joint business known as Rift Haulier Cargo Transporters. She listed the asset motor vehicles under that business and urged that the same should be distributed equally.

9. PW2, Yasmin Shamira Lakhman, testified that she was born on 8th November 2003 and the deceased was her father. Further, that she schooled at Shree Cutchi Leva Patel and her father used to pay school fees and her other upkeep. She went to secondary school and is now in Strathmore University. She was shocked and surprised that she was left out of the estate together with her mother and elder sister.

10. PW3, Munge Ngaruiya, testified that she is a sister to the objector and that the deceased was her brother in law. That she knew the deceased in 2002 when they both decided to operate a matatu business, she used to do town service and he used to operate the western rout service Peugeot 504 to Nairobi and, that he also had an Auto spares store at White Castle. They later grew the business to a point where the deceased had 10 matatus and they run the business together. It was her testimony that prior to having the long distance matatu services he told her that he was dating her sister Muthoni and the trust between the families became strong to the point that he entrusted their father to buy land for him. The deceased later started disposing of the matatus and started building Rift Haulier cargo and at that time, he was married to Muthoni.

11. PW4, Veronica Wanjiru Ngaruiya, testified that the deceased came with one George Gitau to Mwanzo estate in 2003 for the purposes of introduction and declaration of the intention to marry her daughter, Muthoni Ngaruiya. Her husband told them that they were Christians and wanted all formalities to be undertaken before the marriage. He suggested that they do a customary marriage which would be followed by a civil marriage. That they enquired if he was married and he stated that he was not. They proposed to come back during ruracio but it was before their daughter became expectant and as per customary law no negotiation should take place when one is expectant.

12. It was her testimony that in 2004 the deceased came with his friend George Gitau and the family had 5 old men namely James Koigi, Mwangi Gitobu, Francis Mbatia and David Munge and her husband. After paying dowry, he told them he would go conduct a civil marriage but soon after, their daughter informed them that he was married and had another family. She stated that they stayed together and the deceased and her daughter would go to Dubai for business purposes, leaving their daughter, Yasmin, in their care.

13. She testified that the deceased later took Yasmin to Shree Cutchi Leva Patel and she was appointed as a guardian. That the deceased used to pau fees, rent and all provisions for his family. In October 2020 her son Munge Ngaruiya informed her that the deceased wanted to see her together with his daughter at the hospital and she went to see him. On arrival, she met the 1st petitioner and she spoke to the deceased and urged him to go to India for treatment.

14. PW5, Andrew Kimani Ngaruiya, testified that he knew the deceased in 2006 and he used to see the deceased and the 1st objector who conducted themselves as husband and wife. He used to know the 1st objector prior to their marriage and she introduced him to the matatu business. That they used to call him to assist in the business and he knew them as husband and wife.

Objector’s case 15. It is the 1st objector’s case that she married the Deceased and their marriage was solemnized and celebrated under Kikuyu Customary Marriage Law. Further, that the Deceased duly paid dowry to the 1st Objector’s parents and at this point the Deceased had presented himself as being an unmarried man/bachelor. She stated that Kikuyu Customary marriage is not an event but a process that takes place in a series of events, the first being a visit by the prospective husband with a friend for purposes of making inquiries and culminates in the payment of bride price. The deceased visited the 1st objector’s parents with his friend called George. Further, that as a result of the union between the 1st objector and the deceased, they were blessed with one issue of marriage being the 2nd Objector herein. The Deceased, by his own conduct, demonstrated, that for all intents and purposes thereto, the Objectors were beneficiaries and/or dependants in the following terms;a.On 15th March, 2003 the Deceased introduced himself to the Objectors parents and informed them of his intention to marry the 1st Objector;b.On 10th April, 2004 the Deceased paid part of the dowry of Kshs.100,500/= (equivalent to 67 goats) to the 1st Objector’s parent in accordance to Kikuyu Customary Marriage law/rites;c.The Deceased willingly married the 1st Objector herein under Kikuyu Customary Law and observed the rites therein;d.In the year 2003, the Deceased and the 1st Objector herein started a family mobile shop and subsequently a motor vehicle repair shop which they equipped with parts;e.The Birth Certificate of the 2nd Objector clearly indicates that the Deceased was her father;f.The Deceased paid rent for the house inhabited by himself and the Objectors.g.The Deceased paid for the school fees for the 1st Objector at Shree Cutchi Leva Patel Samaj School in Nairobi where the 2nd Objector undertook her primary and secondary level education, a fact that is clearly demonstrated vide the Deceased’s signature on school documents such as:i.Letter for School Admission dated 18th February, 2008;ii.Application Form For Admission dated 16th February, 2008;h.The Deceased also and always catered for the necessities and incidental needs of the 2nd objector .i.In the two insurance policies Numbers 163-84 and 461-3426 from British American Insurance Company (K) Limited wherein, the Deceased was the Policy Owner, the Deceased;i.Stated that the 2nd Objector is a “beneficiary” and further describes her as “daughter”.ii.States that the 1st Objector herein as“Contingent Beneficiary” of the said policy and further describes her as “wife”.

16. She urged that it was only much later that the 1st Objector came to learn that the Deceased was alleged to have been married to the 1st Petitioner/Administrator herein and that they were allegedly blessed with the following issues:a.Sajaan Lakhman Naran – sonb.Nitin Lakhman Naran – sonc.Harshita Lakhman - daughter

17. The Deceased subsequently fell ill and the Objectors routinely visited him when he was unwell. Unfortunately, the Deceased died of cardiac arrest due to lymphoma of the neck and mediastinum. After the untimely and unfortunate demise of the deceased, the Petitioners /Administrators applied and obtained for Grant of Letters of Administration without indicating to the Honourable Court that there were another widow and daughter who were also dependants of the deceased. They also failed to include, involve or obtain the Objectors’ consent on the succession process. Additionally, the said Petitioners/Administrators failed to indicate that there were other properties that belonged to the Deceased inter alia;i.Lexus Station wagon registration No. KCS 407 N;ii.Toyota station wagon Registration No. KCS 357 H;iii.Toyota station wagon Registration No. KCS 356 H;iv.Majority shareholding in Rift Hauliers Cargo Transport.

18. She stated that the above-mentioned properties are separate from the other well-known properties which were personally owned by the Deceased including;i.Pioneer/Ngeria Block 1 (EATEC)/3656 measuring 0. 174 Ha;ii.Pioneer/Ngeria Block 1 (EATEC)/3696 measuring 0. 174 Ha;iii.Pioneer/Ngeria Block 1 (EATEC)/8959 measuring 0. 09 Ha;iv.Pioneer/Ngeria Block 1 (EATEC)/3657 measuring 0. 174 Ha;v.Pioneer/Ngeria Block 1 (EATEC)/12938 measuring 0. 044 Ha;vi.Pioneer/Ngeria Block 1 (EATEC)/12940 measuring 0. 044 Ha;vii.Pioneer/Ngeria Block 1 (EATEC)/12939 measuring 0. 044 Ha;viii.Pioneer/Ngeria Block 1 (EATEC)/12936 measuring 0. 044 Ha;ix.Eldoret Municipality Block 7 / 229 measuring 0. 05Hax.L.R 144281;xi.Lexus Station Wagon Reg. No. KCS 407 N;xii.Toyota Station Wagon Reg No. KCS 357 H;xiii.Toyota Station Wagon Reg No. KCS 356 H;

19. She submitted that a more exhaustive list of assets that the Deceased either wholly or jointly owned is enumerated in the Objectors’ List of Documents of which were filed in court.

20. It is the Objectors’ contention that the Petitioners/Administrators obtained Grant of Letters of Administration without making full disclosure of material facts and without involving the Objectors when they made the Petition or including them in the petition especially in the chief’s letter and/ or in P&A 5 as the dependants. Additionally, it is noteworthy that the Petitioners’/Administrators’ applications both dated 28 February 2022 were misguided because their claims are premised on being widow and business partner respectively to the Deceased, a fact that emerged clearly from their own testimonies at the hearing of this matter where they admitted that their main concern were shares that were held in several joint business ventures that subsisted between them and the Deceased.

21. Citing Article 36(1) of the Constitution of Kenya and submitted that in a democratic country like Kenya, citizens cannot be denied the right to freely associate with anyone they like simply on account of ethnicity or religion. This is the argument being advanced by the Petitioners/Administrators and must be dismissed since there exists every possibility that the Deceased had an interaction with the 1st Objector hence resulting to the existence of the 2nd Objector being their daughter. Further, that Article 42 (2) of the Constitution of Kenya, 2010 provides that;“Every adult has the right to marry a person of the opposite sex, based on the free consent of the parties ”

22. In this context, it is important to reiterate that at the time of the Deceased’s courtship with the 1st Objector, he presented himself as being unmarried man/bachelor and that he was keen on being husband and wife with the 1st objector. He presented himself to the parents of the 1st objector culminating in a marriage under Kikuyu Customary law. So, all along, the deceased and the 1st objector freely gave consent to themselves to having a marriage union under Kikuyu Customary Law. She urged that it was demonstrated at the hearing that the Deceased was a highly sociable person who had an outgoing lifestyle hence from that point of view his association with the 1st Objector cannot entirely be wished away and has been demonstrated on a balance of probability. He even acquired a kikuyu name “Kiragu”.

23. The applicant urged that a narrative that was advanced by the Petitioners/Administrators was that it was not possible for the deceased to have had a second marriage with the 1st Objector, given that he had entered into a prior Hindu marriage with the 1st Petitioner/Administrator. Further, that on a balance of probabilities, there existed a marriage between the Deceased and the 1st Objector, based on his conduct of inter alia staying and living with the 1st Objector, providing for her daughter’s fees and other needs, taking out insurance policies for them, that for all intents and purposes they carried themselves as husband and wife. She stated that the aforementioned prior monogamous Hindu Marriage is not a bar to recognizing the 1st Objector herein as being a wife for purposes of Succession and her daughter as being a dependant of the Deceased. To crystallize this point, the applicant cited Section 3 (5) of the Law of Succession Act and urged that the 1st objector was the wife of the deceased and ought to be considered as a wife for the purposes of the Succession.

24. The applicant cited Section 29(a) of the Law of Succession Act and submitted that the introduction of this provision was meant to provide legal protections to subsequent wives, and consequently their children, and to remedy a situation where they (the subsequent wife [or wives and children]) may have gone without any legal recognition by the sole reason that the husband was in an erstwhile monogamous union. In the instant matter, the Deceased and the 1st Objector conducted Kikuyu Customary marriage rites (which allows for polygamy) and the Deceased even paid dowry to the 1st Objector’s parents. These facts, together with the Deceased’s actions for providing for the 1st and the 2nd Objector and their family at large, sustain the Objector’s assertions that there was intention of marriage which intention was manifested when the deceased conducted Kikuyu Customary Marriage. The applicant cited the case of Re the Estate of T K G (Deceased) [2014] eKLR and MNM v DNMK & 13 others [2017] eKLR and HP v SHD[2009] eKLR and submitted that the import of all the cases is that even though the Deceased may have been a man professing Hindu religion, the 1st Objector and her daughter being the 2nd objector may nevertheless be considered as being beneficiaries and dependants for purposes of Succession.

25. The applicant submitted that the law is clear that “He who alleges must prove” meaning it was incumbent upon the 1st Petitioner/Administrator to demonstrate that the 1st Objector and the Deceased did not access to each other, which burden of proof she did not discharge.

26. The applicant cited Section 3 of the Law of Succession Act and urged that, based on the testimonies and documentary evidenced produced in court, it stands out crystal clear that the 2nd objector is the child of the deceased born by the 1st objector and the deceased.

27. Counsel cited Section 29 of the Law of Succession Act and urged that the fact that the deceased provided for the objectors during his lifetime is significant evidence to show that indeed the objectors are the dependants of the deceased herein within the meaning of section 29 of the law of succession. Further, that based on the submissions, it is now apparent that the objectors have demonstrated their respective positions in this matter as being widow/dependant and a child/dependant for all intent and purposes thereto. The court is now humbly invited to declare them as such and the estate be equally shared out to all the dependants of the deceased being;i.Mayuriben Lakhman Naranii.Muthoni Ngaruiyaiii.Sajaan Lakhman Naran – soniv.Nitin Lakhman Naran – sonv.Harshita Lakhman – daughtervi.Yasmin Shamir Lakhman

28. The applicants submitted that they have demonstrated that, on a balance of probability, the 1st objector and the Deceased were wife and husband for all intents and purposes in relation to the law of Succession Act. Counsel concluded by submitting that it would only be right, fair and just that the objectors herein be provided for, their rightful share, from the Estate of the Deceased in accordance with the law.

2nd* Respondent/Petitioner’s case 29. The 2nd petitioner filed a replying affidavit in opposition to the application. She averred that she is the only widow of the deceased and she produced a copy of the marriage certificate as evidence of the same. Further, that the deceased did not marry the mother of the applicant and that Yasmin Shamira is not his daughter, She maintained that the only beneficiaries of the estate were;a.Mayuriben Lakhman Naran – widowb.Harshita Lakhman – daughterc.Sajaan Lakhman Naran – sond.Nitin Lakhman Naran – son

30. She deponed that the deceased was married to her under Hindu Law on 19th February 1989. That during the subsistence of the marriage with the deceased he could not competently celebrate a marriage with the mother of the applicant even if he wanted since he had no capacity to do so. She averred that Hindu Law does not permit polygamy. She reiterated that the applicant and her mother are not dependents of the deceased. She averred that the chief's letters are accurate.

31. She stated that the deceased had already disposed of the said motor vehicles during his lifetime and further, that the deceased was an equal partner in Rift Haulier Cargo Transporters. She urged that the application dated 15/11 /2022 is incompetent and further, that the applicant is not recognized under section 76 of the Law of Succession Act as a person with locus standi to seek revocation of the grant of letters of administration intestate.

32. The respondent maintained that a birth certificate and or identity card and or passport is no evidence of paternity and that the name of her daughter Harshita Lakhman was omitted from the list of beneficiaries in error and the omission was not deliberate.

33. The petitioners also filed submissions on the objection. The 1st petitioner reiterated that the petitioner and the deceased got married under Hindu Law in 1989. That the Hindu system of marriage does not permit polygamy and therefore, the deceased had no capacity to transact another marriage during the subsistence of the marriage he had with the 1st petitioner. The marriage was only dissolved by the deceased’s death. She urged that the deceased could not have had capacity to marry the 1st objector even if he wanted. In support of the objection the 1st objector has raised one basic question; the alleged subsistence of a Kikuyu customary law marriage. The alleged “marriage ceremony" is said to have taken place in 2004. The 1st objector unsuccessfully attempted to produce a document which was unsigned by all the alleged participants and or people in the alleged meeting. The 1st objector further availed her mother and her uncle to tender oral evidence to buttress her assertion that she got married to the deceased under Kikuyu customary law. All the objector’s witnesses including the objector could only go as far as indicating that there was a meeting to negotiate payment of dowry for the 1st objector which took place in 2004. By that time the 2nd objector had already been born. The petitioner referred the court to the decision in Eva Naima Kaaka & Another v Tabitha Waithera Mararo (2018) eKLR, which laid down the requirements for a Kikuyu customary law marriage to be valid or exist. The court of appeal in the aforestated case held that for a marriage under Kikuyu customary law to exist all the five (5) elements must be satisfied or met. From the evidence that was tendered there was no valid Kikuyu customary law marriage which subsisted between the deceased and the first objector owing to the following:-i.The deceased had no capacity to marry in 2004. He was already in a marriage celebrated in 1989 which marriage precluded polygamy.ii.There was no consent of the deceased and the deceased's family to the alleged marriage.iii.There was no slaughtering of a ram (Ngurario)iv.There is no evidence of payment of dowry. Even if there was evidence of payment of dowry the same could not validate the marriage in the absence of the other elements being met.v.There was no commencement of cohabitation between the deceased and the 1st objector. Cohabitation was to take place at the bridegroom's home under Kikuyu customary law

34. It is the respondent’s case that from the evidence tendered in support of the 1st objector's case or objection it is clear that the deceased had no capacity to marry her. It is further clear that the deceased's family did not consent to the alleged union or marriage. Further there was no Ngurario and commencement of cohabitation at the bridegroom's home. She only attempted to prove that partial dowry was paid but the evidence fell far short of the required standard. The burden of proof under section 107 The Evidence Act lay on the 1st objector and she failed to discharge the same. Her assertion that she is a widow of the deceased fails. As a matter of fact, she has never met the parents of the deceased nor stayed with them. They were never involved nor did they consent to the alleged union or ceremony.

35. The respondent urged that the issue of a presumption of marriage by cohabitation did not arise both in the application nor in the evidence tendered. The honourable court cannot be asked to presume the existence of a marriage in the circumstances as the same never arose. Further, from the evidence that was tendered there is no evidence of long cohabitation between the deceased and the 1st objector. The public did not treat the deceased and the 1st objector as husband and wife on account of the way they related to each other. The issue of the 1st objector being treated as a widow of the deceased for purposes of section 3 (5) of the Law of Succession Act is untenable and baseless. The respondent maintained that for the 1st objector to qualify as a widow or wife for purposes of the Succession Act she bore the burden of proving that she celebrated a marriage with the deceased under a system of law which permits polygamy. The 1st objector totally failed to adduce evidence in support of her contention that she was married by the deceased under Kikuyu customary law. Your honour it is clear that the elements for a Kikuyu customary law marriage do not subsist in this matter. There was no consent of both parents.

36. The respondent submitted that the 2nd objector totally failed to prove that she was a daughter of the deceased or that the deceased supported her in any way during his lifetime and in particular the last 2 years preceding his death. She did not prove that the deceased paid for her upkeep and or maintenance of whatever kind. It is noteworthy that she was born before the alleged meeting of 2004. In view of the aforestated it is clear that the production of the birth certificate and the passport will not do. That it is noteworthy that the 1st objector and her daughter never stayed with the deceased even while staying in Eldoret and that since 2008 she moved to Nairobi together with her where she has all along stayed with her grandparents. She still stays with her grandmother (mother to the 1st objector) to date in Nairobi.

37. In view of the aforestated, counsel urged that the only dependants of the deceased are the 1st petitioner and her 3 children the only issues of the marriage. The objectors are not dependants of the deceased. The estate therefore ought to be distributed amongst the four1. Mayuriben Lakhman2. Sajaan Lakhman Naran3. Nitin Lakhman Naran4. Harshita Lakhman

38. She submitted that the net estate of the deceased ought to be ascertained or identified before embarking on the distribution. Further, that the same has been necessitated by the following reasons ; -a.Some of the properties belong to the partnershipsb.Some of the properties are the subject of a tenancy in commonc.The widow has sought a declaration of a trust and a beneficial interest in the property forming part of the estate of the deceasedUnencumbered Partnership Property in the Name of Rift Haulier Cargo Transporter:i.Pioneer/Ngeria Block 1 (EATEC)/12938ii.Pioneer/Ngeria Block 1 (EATEC]/12940iii.Pioneer/Ngeria Block 1 (EATEC]/12939iv.Pioneer/Ngeria Block 1 (EATEC]/12936v.Motor vehicle KCK 108Evi.Motor vehicle KCM 777Nvii.Motor vehicle KCZ 228 Bviii.Motor vehicle KHMA 176Cix.Motor vehicle KHMA 359Fx.Motor vehicle KHMA 384Bxi.Motor vehicle KHMA 519Nxii.Motor vehicle KHMA 690Dxiii.Motor vehicle ZC 5814xiv.Motor vehicle ZD9420xv.Motor vehicle ZF5663xvi.Motor vehicle KHMA176CEncumbered PropertiesinRift Haulier Cargo Transporter Partnershipi.Motor Vehicle KBU 824 Lii.Motor vehicle KBU 888Riii.KHMA 719iv.KBS 772Nv.KBT 023DRift Valley Luxury Commuter Shuttles Partnership Property With Encumbrancesi.Motor vehicle KAZ 511Lii.Motor vehicle KBB 598Xiii.Motor vehicle KBA 379 Tiv.Motor vehicle KBA 714A

39. Properties in the joint names of the deceased and the 2nd petitioner as tenants in commoni.Eldoret Municipality Block 7/228

40. The following properties though registered in the name of the deceased were disposed of before he diedi.Motor vehicle KCS 407 Nii.Motor vehicle KCS 356Hiii.Motor vehicle KCS 357Hiv.Motor vehicle KBU 866Rv.Motor vehicle KBT 433Kvi.Motor vehicle KCK 108 Evii.Trailer ZD 6745

41. For land reference Eldoret Municipality Block 7/228 which is the home for the deceased's family, his parents and Manilal's family the same is not available for distribution. The same is in line with Hindu custom and practice where the family stays together with his daughters and sons and even grandchildren and great grandchildren. On the property which is in the name of the deceased the same ought to be shared out equally between the deceased and his widow. The 50% which is given to the deceased once his widow's share is removed will form the net estate for distribution amongst the four (4) beneficiaries the widow included. On the property which is in the name of the partnerships the same ought to be shared out equally between the deceased and his living brother. The two were equal partners. The share that is given to the deceased ought to be shared out equally between the deceased and his widow. Whatever is left will be part of the estate which is to be distributed amongst the four (4) beneficiaries the widow included.

42. The properties which are encumbered are not available for distribution because they are not free properties. The same can only be available for distribution once the loans are cleared. For the motor vehicles which had already been sold before the deceased died the same ought to be transferred to the purchasers. The basis for the sharing of the property amongst the partners is because it belongs to the partnership in which the two of them are equal partners. The basis upon which the widow claims an equal share of the estate from her husband is because she was a silent partner and actively participated in the management of the family business. She is therefore a beneficiary and the deceased held the property as trustee for himself and herself. The position taken by the petitioners is buttressed by the holding in Esther Wanjiru Githatu v Mary Wanjiru Githatu (2019) eKLR.

43. The properties here are all registered in the name of the deceased. She urged that she was alive to the fact that under the repealed land regime, including the Registered Land Act one of the overriding interests was a trust including a spousal interest. Learned counsel for the petitioner submitted that the originating summons is incompetent because it should have been brought during the life time of the deceased. There is little merit in that submission. The cause of action survived by virtue of section 2 of the Law Reform Act. By dint of Rule 41 of the Probate and Administration Rules under the Law of Succession Act proceedings should be taken out by an originating summons. The procedure is laid down in order 37 of the Civil Procedure Rules 2010. She urged that the objection ought to be dismissed with costs to the petitioners.

Analysis & Determination 44. Upon consideration of the pleadings, evidence tendered in court and submissions of the parties, the following issues arise for determination;i.Whether the Grant of Letters of Administration Intestate issued to the Petitioners 26th May 2021 should be revokedii.Whether the Petitioner is a dependant/beneficiary of the estate

Whether the Grant of Letters of Administration Intestate issued to the Petitioners 26th May 2021 should be revoked 45. Revocation of grant is governed by section 76 of the Law of Succession Act which provides as follows;76. Revocation or annulment of grantA 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.”

46. The court discussed the circumstances in which a grant can be revoked in the case of In the Matter of the Estate of L.A.K. (Deceased) [2014] eKLR :-Revocation of grants is governed by Section 76 of the Law of Succession Act. The relevant portions of Section 76 are paragraphs (a), (b) and (c) since the issues raised relate to the process of the making of a grant. A grant may be revoked where the proceedings leading up to its making were defective, or were attended by fraud and concealment of important matter, or was obtained by an untrue allegation of a fact essential to the point.”

47. It must be noted that the power to revoke or uphold a grant is discretionary. This was discussed by Justice Mwita J in Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000 where he expressed himself as follows;Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”

48. The applicant’s contention rests on the allegation of concealment of material facts, specifically that the petitioners failed to disclose that the 2nd objector is a daughter to the deceased, that Harshita Lakhman is a daughter to the deceased and that the 1st objector Muthoni Ngaruiya was a wife to the deceased.

Whether the 1st Objector was a wife to the deceased 49. The 1st objector claims that she was married to the deceased under customary law. On the contrary, the 1st Petitioner’s case is that the deceased, having contracted a marriage with her under Hindu Customary Law, could not have married the 1st objector as it is not allowed. She annexed a marriage certificate as annexure MRN1 to her replying affidavit.

50. Section 6(2) of the Marriage Act states as follows;(2)A Christian, Hindu or civil marriage is monogamous.

51. The import of this section is that it is illegal for one married under Hindu marriage to contract another marriage while still married. Eugene Cotran’s “Casebook on Kenya Customary Law” at page 30 sets out the essentials of a Kikuyu Customary marriage. These are stipulated as;1. Capacity; the parties must have capacity to marry and also the capacity to marry each other.2. Consent; the parties to the marriage and their respective families must consent to the union3. Ngurario; no marriage is valid under Kikuyu customary law unless the Ngurario ram is slaughtered.4. Ruracio; there can be no valid marriage under Kikuyu law unless a part of the ruracio (dowry) has been paid.5. Commencement of cohabitation; the moment at which a man and a woman legally become husband and wife is when the man and woman commence cohabitation i.e. under the capture procedure when the marriage is consummated after the eight days’ seclusion, and nowadays when the bride comes to the bride grooms’ home”.

52. Ideally, the test for whether the 1st objector could have been in a marriage to the deceased begins with the issue of capacity. As per the marriage certificate, the deceased and the 1st petitioner were married in 1989. The 1st objector contends that the deceased visited their home in 2003 for introduction to her family and to express his intention to marry her. At this point in time he had no capacity to enter into another marriage. Whereas the evidence shows the existence of a relationship between the deceased and the 1st objector, there was no valid marriage between the two as the marriage act is clear that Hindu marriages are monogamous. Even if the court were to apply the doctrine of presumption of marriage, it cannot be used to validate a union that the marriage act clearly states is not allowed in law. It follows that the 1st objector failed to prove that she was a wife to the deceased and further, cannot be considered as a beneficiary of the estate.

53. I note that the applicants claimed there were various properties that were left out of the estate that belonged to the deceased. It is trite law that he who alleges must prove, and therefore, the applicants were required to provide evidence that the said otems that were excluded belonged to the deceased in order for them to be considered part of the estate. The specific items were three vehicles being; Lexus station wagon Reg. No. KCS 407N

Toyota station wagon Reg No. KCS 357H

Toyota station wagon Reg No. KCS 356H

54. However, the 1st petitioner deponed that the vehicles were sold by the deceased during his lifetime. The applicants produced motor vehicle searches as evidence that the said vehicles were registered in the name of the deceased. Indeed the searches conducted in November 2021 reveal that motor vehicles no. Reg No. KCS 357H, Reg No. KCS 356H and Reg No. KCS 407N were still registered in the name of the deceased.

55. There is no evidence produced by the respondent in terms of sale agreements or proof that these vehicles were sold by the deceased. In the premises, in the absence of proof that the same were disposed of by the deceased, the same should be included as part of the estate of the deceased.

Whether the 2nd objector is a dependant/beneficiary of the deceased 56. Section 29 of the Law of Succession Act sets out the meaning of the term ‘dependant’ as follows:For the purposes of this Part, "dependant" means—(a)……;(b)such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediately prior to his death; and………’

57. The 2nd objector produced a birth certificate as evidence that the deceased was her father being annexure YSL2(a) to the affidavit in support of the application. In the said birth certificate, the deceased is indicated as her father. Section 12 of the Births and Deaths Registration Act provides that no person shall be entered in the register as the father of any child except either at the joint request of the father and mother or upon the production to the registrar of such evidence as he may require that the father and mother were married according to law or in accordance to certain customs.

58. Section 17 of the Children’s Act 2022 provides as follows;(1)Every child shall have the right to inherit property in accordance with the Law of Succession Act (Cap. 160).(2)Subject to the Law of Succession Act—(a)every child shall be entitled to equal treatment and protection, and to the benefit of the law; and(b)no person shall disinherit or cause a child to be disinherited on any grounds, including age, origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, health status, pregnancy, social, political, economic or other status, race, disability, tribe, residence or local connection.

59. Upon examination of the testimonies of the parties, the documentary evidence before the court and the pleadings, I am of the view that the 2nd objector is a biological daughter of the deceased. Further, that she was being maintained by the deceased by way of payment of fees and other expenses until his death. It follows that the 2nd objector is a child of the deceased and by extension a dependant of the estate. Therefore, she is entitled to a share of the estate in an equal capacity to the other children of the deceased. As for Harshita Lakhman, the petitioner conceded that she had excluded her from the list of dependants erroneously and that she was a daughter to the deceased. In the case of Walker v.Mc Dermott (1931) S.C.R 94 .The court enunciated the following test: “ What constitutes "proper maintenance and support" is a question to be determined with reference to a variety of circumstances. It cannot be limited to the bare necessities of existence. For the purpose of arriving at a conclusion, the court on whom devolves the responsibility of giving effect to the statute, would naturally proceed from the point of view of the judicious father of a family seeking to discharge both his marital and his parental duty; and would of course (looking at the matter from that point of view), consider the situation of the child, wife or husband, and the standard of living to which, having regard to this and the other circumstances, reference ought to be had.

60. The equal protection clause in Article 27(4) of a constitution must be used not to invalidate any provision of the law which discriminate on the basis of an illegitimate child born out of wedlock or in a union not recognised within the marriage system of Kenya. Surprisingly, many children of fallen victims in matters of inheritance rights, rights of support, rights to survival rights, rights to custody, rights to education, rights to social welfare etc for the very reasons that the union which gave rise to their existence under the law is null and void. It is time as the children’s Act of Kenya promulgated that the matter be considered from the standpoint of the child. I am mindful of the fact that the equal protection clause in Article 27 of the constitution does not forbid un equal laws and does not require every law to be equally applicable to all individuals. Of necessity classification must be permitted otherwise there could be no meaningful legislation. Viewed in this light it might be said that the deceased covenanted with the first objector that they shall cohabit together as husband and wife until death puts them asunder but as fate would have it he preceded the 1st objector. So the question is whether if the marriage is voidable for reason of the 1st marriage with the 1st petitioner the 2nd objector on the criterion of illegitimacy can be deprived of the right of inheritance. This contention may appear juicy, correct, just, legal, proper, and right to the petitioners by the equal and non-discrimination clause frowns at it as being offensive and purely arbitrary. In our country we have never been confined to a historic motions of inequality by virtue of a restricted fixed catalogue of rights for children being denied their basic social, economic, and welfare rights essentially for mistakes of not their own making. We have long been mindful as a country that where fundamental rights and liberties are asserted, under the constitution any classification which might invade or restrain or limit those rights must be closely scrutinized and carefully confined. It would seem to be beyond question that a father to a particular child during his life time will endeavour to make provisions for the realization and survival of the rights of the child to secure his or her best interests but in death all that realization be extinguished living the child to high level risk of vulnerability. In other words a classification of rights of a child based on the legality of the marriage union is neither constitutionally possible or desirable. This is the cause of action and discernible pattern of the petitioner’s case against the objectors. There is difficulty to adjust to the self world created by the deceased under the auspices of securing his fundamental rights and freedoms. Discrimination against the illegitimate children is rooted so deeply in our culture but thanks be to God to the state legislature which enacted a provision to silence the majority voices aimed at depriving the owners of rights guaranteed in our laws. It may be argued that illegitimate birth furnishes less convincing evidence of paternity than does birth in wedlock all that illegitimate paternity often cannot be established with a degree of certainty with which the child of a marriage may be ascribed to his father. Some arguments out there say that a mere support obligations imposed on the father during his life time is a burden too heavy to be passed on to innocent beneficiaries not even aware of the existence of such a child. Sometimes I wonder whether that would discourage promiscuity amongst both genders. There is no question that there are many laws in our country that tend to properly regulate many aspects of sexual conduct. Notwithstanding that though our society holds intercourse outside of marriage as undesirable and thus the discouragement of illicit sexual Act that has not ended the practice which in some instances gives birth to innocent children around the globe. Given this valid human rights issue in the event a child is born there must be established both legal and more connection for the parents to play their fair role to protect and guarantee the rights of the child of that relationship. The child has a legitimate expectation to enjoy all rights that accrue under our children’s Act and the constitution imperatives on the best interest of the child. So the existing and potential parents desirous of engaging in a union outside marriage likely to give birth to a being under Article 26 of the constitution must be concerned about the treatment that awaits their commonly referred as illegitimate child at the hands of the law. Indeed it’s a conversation society must have whether such class should refrain from illicit conduct which by no means leaves the so referenced child stateless and with no support system to ask the question on protection of his or her rights and an answer to it. As it is, any decisions discriminating against any such children have very little effect on their parent’s sexual conduct as is evidence in Kenya by the statistics of teenage pregnancy and other single parents seeking protection of the children rights in our legal system. As the constitution of Kenya is a living document and an organic instrument, sui generis it propounds the family as the basic social organism in our society. Those then who discriminate against children born out of wedlock as a functional reproduction must of necessity receive disapproval of society. Coming to the case at bar can the 2nd objector born out of wedlock with the first objector and the deceased be entitled to inherit the property belonging to the deceased? In light of the above reasoning and the settled principles of our laws I answer the question in the affirmative. The 2nd objector was legally and properly recognised by the deceased during his lifetime and she is therefore entitled to a share of the estate equal to the children of the 1st petitioner. As for the first objector as much as she held herself out as legitimate wife of the deceased during his lifetime as much as I reckon that the prevailing circumstances does not bring her within any of our system of marriages under the marriage Act. The precarious position is in so far as the elements of Kikuyu customary law of marriage is concerned the cause of action has been found to be fatally defective to stand the test of customs of that community. Indeed the first objection be and is hereby dismissed.

61. In addition to the above, I decline to revoke the grant. However, in the interests of justice, I invoke Section 29 of the Act and Rule 73(1) of the Probate and Administration Rules to direct that the 2nd objector, Yasmin Shamira Lakhman be legitimised as a beneficiary to the intestate estate of the deceased alongside other known children of the first petitioner to this cause. That in the distribution model none enjoys superior rights under the succession Act. In furtherance to this analysis under Section 3 of the Succession Act the following properties be included as part of the estate of the deceased; Lexus station wagon Reg. No. KCS 407N

Toyota station wagon Reg No. KCS 357H

Toyota station wagon Reg No. KCS 356H

62. As a consequence, a model of distribution be filed by the administrators to the extent of the free property of the deceased with allocation of shares as provided for in the statute.

63. As this is a succession matter, each party shall bear its own costs.

64. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 20TH DAY OF NOVEMBER, 2023. In the presence ofMr. Wainaina for Mr. MomanyiMr. Kiboi for the ObjectorsPetitioners and ObjectorsR. NYAKUNDIJUDGE